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By:  Rhonda Armstrong – 4/3/14

Many employers have published dress code policies and grooming standards. These policies project the public persona and image of the business and tend to set minimum standards that all employees must adhere to.  For example, many fast food restaurants want employees to wear black uniform pants and their logo shirt.  Most would expect an employer to be able to tell its employees they cannot wear a Mohawk, lip piercings, visible tattoos and the like. But, what about prohibiting an employee from wearing a beard or dreadlocks, a Muslim hijab, or a skirt when everyone wears long pants? Just ask Abercrombie & Fitch, McDonald’s and KFC. Each paid the price in EEOC settlements: A & F ($71,000) for refusing to let an employee wear a hijab; McDonald’s ($50,000) for refusing to let an employee wear a beard; and KFC ($40,000) for denying an employee’s request to wear a skirt.

The EEOC recently published new “technical assistance” explaining its view about the application of federal employment discrimination law to dress and grooming standards.  The EEOC Guidance offers little hope that an employer can force its employees to look a certain way due to the expectations of its customer-base. According to the EEOC, employers must make exceptions to dress codes and grooming policies to accommodate an employee’s sincerely held religious-based dress or hair request unless doing so would cause “undue hardship” for the employer.  The EEOC contemplates many types of religious dress and grooming practices, such as:(a) wearing religious clothing or articles (e.g., a Muslim hijab, a Sikh turban, a Christian cross or Jewish Star of David); (b) observing a prohibition on wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts); or (c) adhering to shaving or hair length standards (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes).

The EEOC Guidance broadly defines “religion” and extends protection to religious beliefs that are unique, shared by small numbers and even those beliefs that seem “illogical” or even “unreasonable.” Does this mean that an employer is obligated to entertain requests from a member of the Branch Dividians, or Heaven’s Gate? What about having to entertain requests from a member of the Aryan Nation, also known as white supremacists or white Christian separatists?  Well, even though the FBI considers these groups to be terrorists, the EEOC would say “probably,” as long as it is not an undue hardship to the employer. In fact, the EEOC would extend protections to those with no religious beliefs at all.  So, yes, atheists would be protected as well absent undue hardship. The EEOC also would protect an individual’s sincerely held religious belief or practice even if not followed by others of the same religion.

The most controversial provision in my mind is that an individual would be protected where he or she takes on a brand new observance or has an observance only at certain or irregular times. This provision is ripe for abuse. In our office, we consult with clients about their employees seeking to control and/or manipulate their workplace time and time again.  This provision provides one more opportunity for those employees or even job applicants to control/manipulate their circumstances as there does not appear to be anything that would stop an individual from adopting a newly found religious belief just in time for the job interview.  For example, applicants may wear a turban or head scarf to the interview knowing they can cry foul if they do not get hired.  Given this most recent guidance, it seems doubtful an employer would be successful defending a religious discrimination case by showing that the employee claiming a failure to accommodate her use of the Muslim hijab did not consistently wear her hijab in public.  It was this type of evidence that really strengthened one of our client’s defenses in our last religious garb case.

So, what’s the bottom line for employers?  Be prepared for requests to deviate from your dress code and grooming standards.  Treat each request separately on a case by case basis and don’t just reject them out of hand because it would upset your customer-base.  The EEOC guidance is quite clear that an employer cannot cite customer preferences as a reason to deny a request for religious accommodation.  So, the next time you get an applicant who shows up displaying a swastika, or proclaiming the need to wear something weird because of ties to an extremist organization, remember that you must review all the surrounding circumstances, on a case-by-case basis, and determine whether the particular request will pose an undue hardship.

The EEOC’s Fact Sheet is located at:  http://www.eeoc.gov/eeoc/publications/fs_religious_garb_grooming.cfm