Fashion or Faith?

For good business reasons, many employers adopt policies regulating dress and appearance in their workplaces. Employers may not only dictate uniform requirements and proper safety-related attire, but they also may set limits on self-expression in the form of tattoos, piercings and hairstyles. A well-drafted policy can help a company protect its public image, promote a productive work environment and comply with health and safety standards. 

While employers have the right to enforce policies relating to an employee’s physical appearance and dress while at work, recent case law suggests that employers need to be careful in their application of such policies. 

Under Title VII, employers have a duty to “reasonably accommodate” an employee’s or applicant’s “sincerely held” religious beliefs (or lack thereof). This means that if the appearance code conflicts with an employee’s religious practices and the employee requests an accommodation, the employer must modify the appearance code or permit an exception, unless doing so would result in “undue hardship.”

Dress Codes: Wear This, Not That

When accommodations are requested, managers must keep in mind that the need to maintain a certain look is generally not enough hardship to justify blanket refusals. 

For instance, a fast food franchise in Texas terminated a cashier because she wore a skirt to work instead of the restaurant’s uniform pants. The woman allegedly informed the restaurant of her need for accommodation because her religion, Christian Pentecostal, forbids her from wearing slacks.

In this case, the Equal Employment Opportunity Commission (www.eeoc.gov) argued that allowing the employee to wear a skirt would not have cost anything and thus was not an undue hardship for the employer. The restaurant ultimately paid $25,000 to settle the lawsuit. 

In another case, a federal court found a retailer in California liable for religious discrimination when it fired a Muslim employee for refusing to remove her hijab (headscarf) at work. 

Appearance Policies: No Beards, Tattoos, or Piercings

Employers must also tread lightly in trying to control personal appearance in the workplace. 

For many years, courts consistently held that an employer did not have to allow an employee to violate a grooming policy as a reasonable accommodation. However, recent cases reflect a new trend. In November 2013, a car dealership agreed to pay $50,000 to settle a Sikh applicant’s claim that he was denied a job based on his refusal to comply with the dealership’s “no-beard” policy. Similarly, a trucking company settled a case for $46,000 in which a newly hired driver’s Rastafarian religious beliefs prohibited him from cutting his hair or shaving his beard to comply with the company’s grooming policy. 

Religious accommodation claims even may extend to tattoos or piercings. For example, a restaurant employee refused to cover tattoos while at work on the grounds that covering the tattoos, which were themselves religious, would violate his religious beliefs. The EEOC brought a suit on behalf of the employee, and the restaurant ultimately settled the matter for $150,000.

In another case, a sandwich shop server was terminated under a “no facial jewelry” policy after she refused to cover a nose ring, which she said was a practice of the Nuwaubian religion. Proving that not every one of these cases is successful, this one went all the way to trial, where a jury found that the employee’s nose ring was not based on a sincerely held religious belief. 

Keeping Kosher Under the Law

Notably, personal preferences are not pro-tected under the law. Thus, while a Rast-afarian may be exempt from a grooming policy, his bearded co-worker is not pro-tected from discipline under the policy simply because he prefers not to shave. 

Moreover, when dress and appearance policies relate to safety, such as prohibiting long sleeves around machinery, courts have uniformly upheld the rights of employers to demand compliance. 

Finally, offensive or vulgar expressions need not be tolerated, and may even become a liability for employers. For instance, while an employee may claim that his KKK tattoo represents a religious belief, the same tattoo could be used as evidence to support a co-worker’s racial-harassment claim against the company. 

No ‘One Size Fits All’ Policies

Managers have been trained for years not to make exceptions to company policies.  However, as these cases demonstrate, many employers have learned the hard way that a “one size fits all” policy may be problematic when it conflicts with an employee’s religious beliefs. 

Complicating matters further, appearance policies also may implicate an employee’s race or disability. For instance, many African-American males suffer from a skin condition that makes shaving extremely painful. If an employee pre­sents such a condition, an employer’s rigid application of a no-beard policy will likely lead to trouble with the EEOC. 

In light of this recent litigation trend, employers may need to reassess how they train their managers to handle discipline issues surrounding dress codes and appearance policies. Each request for a religious accommodation will turn on the facts of the specific case, and managers must be trained to address any issues that arise.

Jack Stapleton is an associate in the Atlanta office of Fisher & Phillips LLP, which represents employers across the U.S. in labor, employment, civil rights, employee benefits, OSHA and immigration matters. He can be reached at 404.240.5843 or at jstapleton@laborlawyers.com.

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