Achieving a diverse workforce is a highly touted goal among employers. It’s a goal that drives recruiting as well as efforts to build company culture. But the details – the various policies and rules employers may adopt without considering risks—can be easy to overlook. One area not to be forgotten: dress codes and other appearance policies that sometimes pose religious discrimination risks.
Most employers wouldn’t intentionally adopt policies targeting certain religious groups, but seemingly neutral policies can still pose a threat. For example, can an employer legally prohibit beards, tattoos, head coverings, the wearing of religious symbols, etc.? Usama Kahf, an attorney in the Irvine, California, office of the Fisher Phillips law firm, took on that question in a recent Business and Legal Resources webinar titled “Preventing Appearance-Based Discrimination: Legal Guidelines for Protecting Religious and Cultural Groups.”
Kahf says when considering the impact a policy has on an employee’s religion, employers need to consider two basic questions: Should they adopt policies regulating employees’ dress and appearance? And can those policies be strictly enforced without violating the law?
The answer to the first question is “yes,” Kahf says. “There are a lot of different, good business reasons for establishing dress and appearance policies.” But the answer to the second question isn’t so clear cut. “Rigid application of these policies may lead to trouble with the law,” he says, and sometimes exceptions need to be made.
“Religious discrimination claims are on the rise,” Kahf says, with figures from the Equal Employment Opportunity Commission (EEOC) showing that many of the claims deal with employees requesting accommodations related to their religious views.
Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their religion, but defining religion gets challenging. The EEOC definition refers to “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” That definition doesn’t always make it easy to determine sincerity.
“Anytime an employer is trying to determine whether someone’s beliefs are actually a religion … or whether they’re just an excuse that the employee is coming up with to not comply with an employer’s policy, if you are in that position, you’ve already kind of lost,” Kahf says. He suggests not questioning the belief and, instead, focusing on determining whether an accommodation is warranted.
Failure to accommodate
When an employee’s religion and an employer’s policy collide, accommodations are often required. Kahf says three elements must be satisfied in order for an employee to make a case for accommodation:
- A bona fide religious belief or practice that conflicts with an employment requirement must exist.
- The employer must be on notice of the conflict.
- The employee must have been disciplined for failing to comply with the conflicting employment requirement or must have complied under protest after a threat of discipline.
Policies against beards and head coverings are common issues bringing religious discrimination claims. Kahf brought up the example of a Sikh applicant who was denied a job at a car dealership because of the employer’s no-beard policy. Sometimes those policies are justified because of safety and health concerns, but the point is why a car dealership would need that policy, other than to say “we don’t want your kind around here.”
“Even though the policy was not discriminatory, that’s the impression that the jury or the judge or the fact finders are going to see,” Kahf says.
A 2015 U.S. Supreme Court case against clothing retailer Abercrombie & Fitch illustrates how an employer can discriminate against applicants and employees even when no accommodation is specifically requested.
Kahf explains that the case centered on a young Muslim woman who wore a hijab head covering when she interviewed for a sales job in an Abercrombie store. She wasn’t questioned about the hijab, but the interviewer understood that she wore it for religious reasons. She was found to be qualified for the position except that wearing the hijab would have violated the company’s “look policy,” which prohibited head coverings.
Kahf stresses that the takeaway from the Abercrombie case is that employers shouldn’t ask about religion in interviews, but they also shouldn’t ignore potential conflicts. Policies should be explained and applicants should be asked if they can comply. Then employers should explore if accommodations are necessary or possible.
When the need for a religious accommodation arises, employers must explore whether granting an exception will cause an undue hardship to the organization. Kahf said courts typically look at financial impact and safety when determining whether an undue hardship exists.
Undue hardship always has to be decided case by case, Kahf says, but relevant factors include the type and nature of the workplace, the nature of the employee’s duties, identifiable costs of an accommodation in relation to the size and operating costs of the employer, and the number of employees needing a particular accommodation.
Well-drafted policy tips
Discrimination risks associated with appearance policies depend on many factors, but Kahf suggests general guidelines for well-drafted policies:
- Policies should be based on business needs and not adopted as a way to avoid certain people.
- Policies should be applied uniformly. Some religions shouldn’t be accommodated while others aren’t.
- Employers need to consider state law since some state laws are stricter than others.
- Policies should be in writing and circulated companywide.
- Employers should describe the consequences of violating the policy.
- Policies should be flexible to allow for variations that may be required by antidiscrimination laws.