The Supreme Court’s recent decision in Burwell v. Hobby Lobby underscores the continuing impact that religious concerns can have on the modern workplace. Away from the glare of the national spotlight, one of the most common—and potentially complex—religious issues employers face involve religious dress and grooming.
Federal law not only prohibits discriminating on religious grounds; it also requires employers to reasonably accommodate an employee’s religious practices, unless the accommodation would cause an undue hardship. In most instances, employers must make exceptions to their work rules and policies, if those policies conflict with the religious dress or grooming practices that come from an employee’s sincerely held religious beliefs.
Though only sincerely held beliefs are protected, employers should be very wary about questioning an employee’s sincerity about their religious dress or grooming requirements. Protected religious observance can arise from any traditional organized religion, from a religion that is not part of any formal sect, from a new religion, or simply from moral and ethical beliefs held as strongly as religious views.
Religious beliefs can also change radically over time, or become much more pronounced around religious holiday periods, while at all times remaining sincere. Because the federal definitions are so broad, employers should generally avoid challenging the sincerity of an employee’s religious belief.
Employers do have the right to exert significant control over the appearance of their employees while they are working (such as requiring that uniforms be worn). However, even where an employer has established policies concerning dress or grooming, exceptions to those policies must be made to accommodate an employee’s sincerely held religious beliefs. Only when such an accommodation would result in an undue hardship to the employer, like presenting a genuine and unavoidable health, safety or security risk, can an accommodation be denied.
Additionally, an employer may violate the law by taking employment actions based on the discriminatory preferences of other employees, clients, or customers. Terminating an employee with a customer-facing position because business suffered after customers complained about the employee’s religious dress or grooming would be unlawful, as would reassigning that employee away from a customer-facing position to a back room for the same reasons.
Employers should craft policies and conduct training to ensure that everyone responsible for employee management makes decisions and recommendations based on genuine business needs unrelated to any discriminatory basis. The Equal Employment Opportunity Commission often requires employers to put policies in place and engage in annual training as part of a settlement of a complaint.
Employers do not, however, need to accommodate religious dress or grooming worn for non-religious reasons, such as fashion preference. For example, consider two male employees, both of whom have long hair, and an employer with a policy requiring male employees to have short hair.
If one employee states that their long hair is worn pursuant to a religious belief, but the other states that it just looks good, the employer may make an exception to the policy for the first employee, while continuing to enforce the policy for the second employee. However, if the second employee later states that he is now wearing his hair long for religious reasons, the employer would likely need to extend the exception to the second employee, unless doing so would pose an undue hardship to the employer.
An employer cannot violate the law without knowing that the employee’s violation of a dress or grooming policy was not due to a sincerely held religious belief. For example: If a gym employee refuses to wear a required uniform of shorts and a polo shirt for religious reasons, and is disciplined without ever informing the employer about the religious objection, the employer has not committed a violation. Had the employee disclosed the religious reasons for the refusal, the employer would be required to evaluate reasonable accommodations (like allowing the employee to wear pants or another garment).
However, no specific language is required for an employee to make a religious accommodation request, and some dress and grooming practices will be so clearly religious that the need for a reasonable accommodation will be clear even without a request. Employers may ask for additional information about a religious accommodation request, if they reasonably require it.
To learn more about the latest developments in religious accommodation in the workplace, and other cutting-edge topics in labor and employment law, please join us for our complimentary Annual Seminar on September 25. More information can be found at www.barran.com.
Damien Munsinger is an attorney at Barran Liebman LLP where he advises employers on a wide range of employment and labor law issues. Contact him at 503-276-2112 or a dmunsinger@barran.com.
