Remembering that employment discrimination has been illegal for less than 50 years, workplace accommodation has come a long way.
The first accommodation laws protected people with cancer, back when cancer was feared to be contagious. The law was put to the test when it was applied to protect people infected with HIV/AIDS, and employers were reluctant to offer the protections guaranteed by law. But over the decades, those fears waned, it’s universally settled and recognized that the law prohibits discrimination against persons with disabilities, and the prejudice against cancer victims has virtually disappeared.
The law was tested again when it was expanded beyond prohibiting disability discrimination and mandated the provision of affirmative accommodations to qualified employees with disabilities. There was concern that job quality would suffer and that required accommodations would cost huge dollars. In practice, reasonable accommodations generally have gone smoothly, with most accommodations costing below $200 and good performance of essential job functions something that employers can still require under the law.
Early in the application of sex and race discrimination laws in the 1970s and 1980s, the rules were thought to be impossible to comply with. Male flight attendants? As common as they are now, the concern was that airlines would lose passengers by the 747-full if they hired anything but cute young stewardesses. Similarly, it was simple business sense that you couldn’t send an African American to make sales calls in an all-white neighborhood. But in a relatively short period of time, the vestiges of those customer preferences disappeared, and they would be viewed as Neanderthal today (no offense meant against Neanderthals).
If the shoe fits, put a stiletto on it
Still, there remain some “I can’t comply with that” employment laws on the books. One of them protects a transgender employee’s right to dress in accordance with his or her sexual identity. So if your best, most buttoned-down, most businesslike salesman comes to work tomorrow smartly dressed in hose, heels, lipstick, and a dress ― well groomed, coiffed, and clad ― many employers will have trouble with the law that protects him. But the law addresses exactly that issue, and as long as equally applied business-related grooming standards aren’t violated, an employer takes adverse action at its own risk. Cross-dressing at work seems odd today, but let’s revisit that in a decade.
But there seems to be one place where time stands still ― oddly enough a place with a neighborhood called Tomorrowland. I refer, of course, to Disneyland, the Happiest Place on Earth ― except, perhaps, if you’re a Muslim woman who wears religious headgear.
Twenty-eight-year-old Imane Boudlal worked in the Anaheim park as a restaurant hostess for two years. She claims that she complained to her managers about constant harassment from coworkers, who called her names such as terrorist and camel. When she announced that she wanted to wear a hijab, she claims she was told to either move to a job unseen by visitors or wear a hat. When she refused, she claims Disneyland stopped scheduling her for work because her religious head scarf violated its dress code. Disneyland claims Boudlal has simply refused to return to work.
Disneyland has no “employees,” only “cast members”; it has no “customers,” only “guests.” Clearly, it’s highly motivated to present a carefully staged experience, and uniforms and makeup are part of the illusion it offers to those who enter its 85-acre theater. Like any other theatrical director, it wants to script every part of the play.
We will soon find out if this last trace of customer preference survives the intersection of Frontierland and the 21st century. Recall that things may seem Goofy today but be viewed as commonplace tomorrow.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco, California.For the past 30 years, he has concentrated on employment and labor law, litigating every type of employment matter and providing advice in avoiding liability for discrimination, harassment, wrongful termination, union related charges and all other aspects of the employment relationship. You can contact him at schickman@freelandlaw.com.