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Hijab v. HR — does your dress code discriminate?

June 28, 2011

Abercrombie & Fitch was recently sued for prohibiting a Muslim female employee from wearing a religious headscarves, or hijab, at work.  A&F’s dress code According to the EEOC’s press release, A&F violated federal Title VII when it fired the employee “for refusing to take off the hijab  that her religious beliefs compelled her to wear.”  The EEOC suit seeks back pay, compensatory damages  and punitive damages and injunctive relief to prevent future discrimination.  And, of course, the employee (and at least two others in similar situations) have sued A&F directly.  A&F is not the first, and won’t be the last, employer to face such complaints.

Title VII and California’s Fair Employment and Housing Act expressly prohibit discrimination on the basis of an employee’s religion.  But what happens when the religious beliefs of an employee collide with an employer’s desire for a productive workplace and uniform “brand” or “look policy” (A&F’s label) to be presented to the public?

The answer is, it depends on the circumstances.  Courts start by looking at the basic legitimacy of employee’s belief and its impact on his or her job.  To establish a legitimate claim the employee needs to show three things:

  1. A sincere religious belief that conflicted with an employment duty;
  2. The employer was notified of the conflict; and
  3. Discipline, termination, or other job consequence as a result of the conflict.

These are not hard things to show.  And once they are shown, the employer has to either accommodate the employee or prove that doing so would be an “undue hardship.”

In the private sector, dress code-related accommodations are generally considered not to be undue hardships.  The exceptions are for safety — such as where turbans and other head coverings (or long hair) might be caught in machinery and injure the employee, for instance.  (Public employers such as police departments and schools have also shown undue hardship by proving a need to avoid endorsement of a particular religion and maintaining neutrality.)  Note, however, that even when safety is an issue, the employer may have an obligation to accommodate the employee by placing him or her on unpaid suspension until another job opens up, or other means are developed to address both safety and the employee’s religion.

What if the asserted hardship is damage to an employer’s “image” or “brand”?  Courts will likely insist on an accommodation other than “take it off or you’re fired.”  Employers should at least job reassignment to a non-public position.  Employers should also be prepared to show real economic consequences from accommodating affected employees, and not just hypothetical or speculative potential impacts to the company’s image.

The three most important takeaways for employers with dress code/religious conflict issues:

  1. Pick your battles wisely.  If there is a health and safety issue involved, that is one thing.  Otherwise, appeasement may work out better for you than it did for Neville Chamberlain.  These cases are expensive to defend and settle.  Oh, and it wouldn’t hurt to have a lawyer or HR consultant take a look at your policy, either.
  2. Be interactive.  Approach each complaint individually and flexibly.  If you can’t do what the employee wants, offer something else — a different job, a different shift, a different location.  Tell the employee specifically why his or her proposal isn’t acceptable, and be prepared to back it up.  Document everything said by either party.
  3. Be empathetic and fair.  Religious beliefs bring up strong emotions.  Acknowledge them in your discussions and in your proposed accommodations.  Treat similarly situated people similarly.

The EEOC appears to be looking closely at religion-based discrimination.  Keep these things in mind, and you may avoid becoming the next victim in this particular holy war.

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