If your employee’s religious clothing poses a potential safety risk, you can tell them to not wear it, right? Though that might seem logical from a safety perspective, managers need to concern themselves with a discrimination and compliance perspective as well. As is so often the case, the matter is complicated, and some consideration of those complications can help avoid an offensive and expensive misunderstanding.
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Accommodating your employees’ religious practices is likely to be an issue you’ll continue to face as today’s workforce becomes increasingly diverse. Oftentimes, you can easily make accommodations with no problems arising. Sometimes, however, miscommunication can occur, which may lead to misunderstandings and even lawsuits.
Stop Wearing Hijab, or Be Fired
Keseandra Brooks was an employee at Hanover Health and Rehabilitation Center in Mechanicsville, Virginia. A practicing Muslim, she says she wore a hijab (or traditional cloth head covering) to work for a period of time without any problem. In January 2017, however, she claims her managers told her she had to stop wearing the hijab or be fired because they were concerned about the safety implications if the head garment was grabbed or pulled.
Brooks did not quit wearing the hijab and also did not return to work. Instead, she filed a lawsuit in Richmond federal court against Hanover, claiming discriminatory termination because of her religion. In the lawsuit, she is seeking a jury trial, back pay, punitive damages, and attorneys’ fees. Although Hanover says Brooks is welcome to return to work and wear her hijab, she has not returned, and the lawsuit continues.
Avoid Snap Judgments
Brooks’ lawsuit demonstrates that your managers and supervisors need to be aware of the legal obligation to ensure that company dress codes and other employment policies take into account and adjust for employees’ religious practices. Snap judgments made by managers or supervisors can get you into legal hot water. Under Title VII, all employers with at least 15 employees have a legal responsibility to accommodate their employees’ religious practices, including clothing and grooming. Thus, totally prohibiting employees from wearing a hijab or other religious attire or accessories that are expressive of religion generally will be found unlawful. The only exception arises when you can demonstrate that making an accommodation would cause an undue hardship.
In 2015, the U.S. Supreme Court reaffirmed the above principles in EEOC v. Abercrombie & Fitch Stores. In the case, the Court sided with Samantha Elauf, a young Muslim woman who claimed she wasn’t offered a position at an Abercrombie store because she was wearing a hijab, even though she met the job’s basic requirements. The Court ruled that Elauf should have her day in court to prove a Title VII violation. To avoid similar legal claims, your managers need to know and understand their legal duties to accommodate your employees’ right to exercise and express their religious beliefs.
Remember Applicants’ Rights, Too
Keep in mind that your legal responsibilities aren’t limited to current employees. They also cover job applicants, as shown in the Abercrombie case. For instance, you can’t refuse to hire an applicant who wears a religious headscarf to the job interview based on your belief that it’s a religious garb you don’t want to accommodate.
The rule applies even when the job applicant wearing the religious garb doesn’t reveal her religion or request an accommodation. Your refusal to hire her still violates Title VII and is therefore illegal.
EEOC clarifies undue hardship
So, what is an “undue hardship” that would justify a ban on employees’ religious clothing? The U.S. Equal Employment Opportunity Commission (EEOC), which enforces Title VII, defines undue hardship as burdens on a business that are more than minimal. The most common example would be something that creates a hazard to security or health. There is no clear formula, however, and it isn’t always easy to prove that a hardship exists. Therefore, it generally is advisable to try to make appropriate accommodations for employees who desire to dress in a manner that is in harmony with their religious principles. Even when you’ve established a policy on employee clothing or grooming, consider making appropriate exceptions so your staffers can follow their religious dress code.
Finally, don’t be worried about the possible domino effect of making exceptions—you still can refuse to make an exception for nonreligious bases. The EEOC clarifies that if a dress or grooming practice is worn merely for fashion rather than for religious reasons, you don’t need to make an exception. For example, even though you may have allowed an employee to wear a beard for a religious reason, it doesn’t mean you can’t continue to prohibit other employees from having a beard as a matter of personal choice or preference.
Additional information on rights and responsibilities regarding religious garb and grooming in the workplace can be found on the EEOC’s official website at https://www.eeoc.gov/eeoc/publications/qa religious garb grooming.cfm.
Woo Hyoung Cho is a summer associate with DiMuroGinsberg and can be reached at intern@dimuro.com.