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April 20, 2014

Discrimination Claims Based on Denial of Religious Clothing Is “Low Hanging Fruit” to EEOC

At a recent workshop for attorneys, the Equal Employment Opportunity Commission provided guidance on what employers should consider when enforcing a dress code policy on religious clothing.

A senior EEOC attorney described cases involving religious clothing and grooming policies as “low hanging fruit” for EEOC enforcement efforts.  Among the cases the EEOC is investigating are claims of religious discrimination where employees have been disciplined or otherwise disadvantaged for donning Muslim head scarves, Sikh turbans and yarmulkes.  The EEOC is also pursuing cases involving religious tattoos.  In one case, EEOC recently sued a Burger King restaurant for religious discrimination because it fired a female cashier, who is a Christian Pentecostal, for refusing to wear uniform pants.  A tenet of the Christian Pentecostal faith is that its members should not wear the clothing of the opposite sex.  The woman’s offer to wear a skirt of modest length was rejected and she was discharged.

EEOC acknowledges that employers can have and enforce a dress code, but when it comes to dealing with employees who wear clothing for religious reasons or have special grooming requirements EEOC takes the position that exceptions to the policy may be required as an accommodation.  Under Title VII of the Civil Rights Act of 1964, an employer is required to accommodate an employee’s religious belief unless doing so would create an “undue hardship.”  According to the EEOC attorney, an undue hardship is “anything that would cause more than a de minims cost on the employer’s operation.”

Employers should be careful about arguing that absolute enforcement of a dress code policy is a business necessity.  The EEOC will scrutinize an employer’s ban on religious clothing that the employer justifies based in its desire to convey a certain image to customers and the public.  EEOC and the courts have recognized undue hardships where the religious clothing creates a safety hazard or where the garb may be mistaken as being the employer’s “message” to customers and clients.  However, employers should tread cautiously.   In one case, a court found that a county library discriminated on the basis of religion when it fired a librarian because she refused to remove a “cross necklace.”  The court held that library patrons were unlikely to believe that the cross was part of the county’s message.

Employers should review their dress code policies to ensure they are not discriminatory and that they recognize the possibility of accommodating religious clothing, jewelry and tattoos.  In addition, managers should be educated to understand the employer’s rights and responsibilities when faced with an employee’s request to wear a religious article that may conflict with the dress code policy.

©2014 Drinker Biddle & Reath LLP. All Rights Reserved

About the Author

Partner

Mark D. Nelson is a partner in the Labor & Employment Practice Group. Mark has represented management in labor relations and employment discrimination law for 25 years. He has extensive experience representing employers in a wide variety of industries in labor matters, including union avoidance, union organizing campaigns, labor disputes and unfair labor practice proceedings.

Mark also has considerable experience representing employers in arbitration hearings on issues such as discharge, discipline, contract interpretation and management rights. He has...

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