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Workplace Appearance Policies and Religious Accommodation

April 8, 2014

By Michael G. McClory

In The Bullard Edge today, we are responding to a question received in the (fictional) mailbag.  We do this on a regular basis.  Today’s question comes from H.R. Director, in Portland.  H.R., who is the personnel manager at a hotel, sounds a bit frazzled. 

H.R.'s Question:

“Friday was chaotic.  Jane came to work sporting new tattoos on her wrists in the shape of a cross and a dove; we do not allow religious insignia or visible tattoos.  Bill refused to wear the uniform hat required of all lobby employees.  And Ken, who had been off work for two days, showed up looking like he had not shaved in three days (and admitted as much when asked); our grooming policy does not allow mustaches, beards, or long sideburns. 

I spoke to each of them and got the same response: religion. 

Jane said that she had obtained these tattoos to show the strength of her faith; she said she was taking it to the next level.  Bill said that his minister had convinced him that only religious headwear was appropriate.  And Ken said that he had recently converted and that facial hair is required for men in his church.

These are not new employees and none of these issues were present before - and by 'before' I mean Thursday.  All of them now violate our appearance policy.  Do I have to allow these things?”

The Bullard Edge's Response:

This is an interesting question, H.R., and I can feel your sense of frustration.  Happily, it sounds like you are on your way to complying with applicable law.  Talking to the employees about these matters is key and you did that already.  Let’s go through some of the important points quickly.

The relevant federal law is Title VII; Oregon law mirrors federal law.

Both federal and Oregon laws prohibit an employer from discriminating against an applicant or employee based on an employee's religion, unless the action to be taken (such as strict enforcement of an appearance policy) results from a bona fide occupational requirement reasonably necessary to the normal operation of the employer’s business.  Further, existing Oregon and federal laws also require an employer to reasonably accommodate its employee’s religious practices and beliefs, unless providing accommodation would result in undue hardship.

A recent Equal Employment Opportunity Commission fact sheet may be of help.  In the publication titled Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities, the EEOC states: 

“An employer may bar an employee's religious dress or grooming practice based on workplace safety, security, or health concerns only if the circumstances actually pose an undue hardship on the operation of the business, and not because the employer simply assumes that the accommodation would pose an undue hardship.

When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.

Neither co-worker disgruntlement nor customer preference constitutes undue hardship.”

The EEOC also stresses that a case-by-case determination is needed.

When faced with an employee request that he or she be permitted to vary from an appearance policy (or other policy), and where there is no known religious basis for that request, then the religious accommodation requirements under Title VII and Oregon law do not come into play.  An employer does not want to assume that religion is the reason for a request.  When discussing the request with an employee it is a good practice to ask the employee the reason for the request.  This gives him or her the chance to identify any religious basis for the request. 

In the event that an employee raises religion, then the situation requires a form of an interactive process.  The issue of religion only needs to be raised enough to alert you to a possible religious belief or practice.  Here are several steps to take.
  1. In your case, each of the three employees has told you that religion is the reason for the new practice (for Jane’s tattoos, Bill’s rejection of the hat, and Ken’s growing beard).  An employer in this situation may ask the employee for information that explains the specific request (e.g., variation from the appearance policy) and the reason for it (e.g., the belief or practice that is the basis for the request).
  2. There is no requirement that the employee’s explanation be supported by a note from a minister, a citation to a religious document or anything similar.  The employee simply must confirm for the employer that he or she actually has/follows the belief/practice in question.  The “threshold” for required support is quite low.
  3. Assuming the employee meets it, then the employer must either accommodate the request or explain why it would be an undue hardship.
  4. Undue hardship is fact specific and requires a case by case approach.  The employer bears the burden of proving undue hardship and cannot meet that burden with proof of a hypothetical or speculative hardship.
  5. An employer needs to be creative in its approach to the undue hardship analysis.  The employer knows its rule, knows the employee’s request, and knows how the rule and the request conflict.  For example, with Jane, it would be reasonable for you to explore whether her tattoos may be covered during work (in which case long sleeves might be a solution).
  6. Before denying a request for religious accommodation, it is a good idea to consult with legal counsel.  The case law in this area is evolving and is trending in favor of requiring accommodation.

I hope this information is helpful, H.R.  Please feel free to let me know how it works out or to ask additional questions.  Best regards,

The Bullard Edge
 

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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