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Frequently Asked Questions about Protection for Religious Clothing or Hairstyles in California

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Question #1 
 What is “religious dress?”

Although it has not yet been defined by a court, “religious dress” means virtually any piece of clothing or accessory that signifies or expresses a religious creed or belief. 

The most common examples are a hijab (the headscarf worn by Muslim women), the dastar (the turban worn by Sikh males) or a yarmulke (the skullcap worn by Jewish males).  Religious dress could also include jewelry such as a Christian cross, Star of David, or an Ankh.

Question #2 
 What is a “religious grooming practice?”

A “religious grooming practice” is defined by the FEHA as “all forms of head, facial and body hair that are part of an individual’s observance of his or her religious creed.”  Under this standard, an employer would be required to accommodate an employee’s religious belief by allowing him to wear a beard or long hair in the workplace.  Some religions require men and women to shave their head.

Question #3

A Muslim female employee wore a hijab to work.  While working the counter, she was verbally abused by a customer whose child is serving overseas in the military.  The manager followed our company policy and politely asked the customer to stop.  Although the customer left, the manager felt horrible and told the employee that she did not have to work the front counter anymore. 

Can an employer permanently assign the employee to work out of the public eye so that she doesn’t get insulted (and we don’t lose customers)? 

No.  California Governor Jerry Brown recently signed AB 1964 to amend the Fair Employment & Housing Act (“FEHA”) to enlarge the description of what constitutes a protected act under the stature relative to religious observance and accommodation in the workplace.  An employer is required to reasonably accommodate an employee’s desire to wear religious clothing or engage in religious grooming practices.  AB 1964, however, expressly states that it is not a “reasonable accommodation” to segregate or hide the religious employee from the public (or other employees).

Question #4 
 What about tattoos or body modification?

There is no “one size fits all” answer.  It depends on the employee’s subjective belief and the employer’s objective policies.  The question reflects a changing employee demographic.

While disputes over head coverings are likely caused by the increase in diverse ethnicity in the workplace, there appears to be a different area of religious dispute gaining traction in the workplace, one that appears to be related to the age of our workforce:  visible body modification – tattoos, body piercings, subdural implants and other modifications such as ear gauges and lip extensions, that can be, according to applicants and employees, a manifestation of religious belief.

It is no secret to HR professionals that, as baby boomers retire in increasingly greater numbers, the bulk of the US workforce is getting younger.  Sarah Sladek, author of Rockstars Incorporated(a guide to recruiting folks half your age), notesthat by 2015 “we will observe the largest turnover in human capital in history and Generation Y (currently ages 17-30) will outnumber the Baby Boomers in the workforce.  This is a substantial change in and of itself considering the Boomer generation has been in power for more than 40 years.”  See, The New Workforce:  Young, Rich and Female.

My point is, that for 40 years, mostly older, mostly white, mostly Christian folks have been setting employment policy in this country.  Now, as a group less tied to organized faith (as established by dropping numbers in adult membership) comes into the workforce, we are experiencing a need for education and flexibility in our idea of what constitutes a religion and how we can accommodate religions while maintaining productivity and brand confidence.

Make no mistake about it.  There are an awful lot of 20-somethings with “VBM” (visible body modification).  The Church of Body Modification, a federally recognized, tax exempt religious body, has over 5,000 members and is growing.  As early as 1997, tattooing was the sixth fastest growing industry in the US according to US News and World Reports – and it hasn’t slowed down since.  Tattoo Statistics

A survey conducted by the Pew Research Center discovered that more than 45 million Americans have at least one tattoo.  The American Medical Association reports that, as of 2007, 24% of the general US population had a tattoo.   (Id.

Surprisingly, as of 2010, the survey found a whopping 60% of all 18-25 year olds believed that having a visible body modification has no impact on their world whatsoever.  Tattoos at Work: Is Your Body Art Hurting Your Lifetime Earnings? This belief stands in sharp contrast to that held by 85% of all employers participating in a confidential survey conducted by Vault.com who shared that tattoos and piercings influence a candidate’s chances of being hired by an employer.  (Id.)

  • The VBM trend is too new to determine if modified employees suffer long term differentials in salary over the lifetime of their employment.  Tattoos at Work: Is Your Body Art Hurting Your Lifetime Earnings?  This will undoubtedly prove to be the case as there are an increasing number of workers who have tattoos in “always visible” locations such as on the neck, head and hands.  Check out Vault.com’s “person-on-the-street” interviews here.  Tattoos, at least are gaining in workplace acceptance.
  • But not everyone is fully on-board with VBM.  According to the June 18th issue of New Yorker Magazine, film star Mark Wahlberg recently had his VBM – a large tattoo, removed from his neck.  Sephora, one of the world’s largest cosmetic retailers, now carries tattoo artist Kat Von D’s line of highly pigmented makeup to help consumers cover up their tattoos.

But even so, are tattoos and piercings religious practice?  Must they be accommodated?  The answer is definitely not clear.

On its Equal Rights 101 Quizzesweb page, the FEHA and the federal Equal Employment Opportunity Commission (“EEOC”) team up to answer the question “Is this discrimination” relating to tattoos:

You start working in a popular, upscale department store. The employer has strict policies regarding hair length for men, the amount of jewelry worn by employees, and never wants to see any tattoos showing. You just got a brand new snake tattoo that wraps around your arm. It’s also not fair that girls get to wear ponytails, but you have to have your hair short. Aren’t there laws against this?

No. In California, an employer can impose reasonable grooming or dress standards. It could be against the law, however, if the standards on a basis covered in the law, like not letting you wear a yarmulke on the Sabbath. The standards also cannot significantly burden you in your employment.

It appears from the answer that both the FEHA and the EEOC treat a tattoo the same way it treats hair and dress.  If it is not a religious observance, it is subject to standard dress codes.  On its website, the EEOC further illustrates the distinction between modes of dress and religious observance through case studies illustrating application of the rule.  In Section A, 1, of its Guidelines for employers, the EEOC provides two examples relating to workplace accommodation of piercing and tattoos.

[Tattoo Only] 
  Unique Belief Can Be Religious 

Edward practices the Kemetic religion, based on ancient Egyptian faith, and affiliates himself with a tribe numbering fewer than ten members.  He states that he believes in various deities, and follows the faith’s concept of Ma’at, a guiding principle regarding truth and order that represents physical and moral balance in the universe.  During a religious ceremony he received small tattoos encircling his wrist, written in the Coptic language, which express his servitude to Ra, the Egyptian god of the sun.  When his employer asks him to cover the tattoos, he explains that it is a sin to cover them intentionally because doing so would signify a rejection of Ra. 

These can be religious beliefs and practices even if no one else or few other people subscribe to them.

[Piercing and Tattoo] 
  Personal Preference That is Not a Religious Belief

Sylvia wears several tattoos and has recently had her nose and eyebrows pierced.  A newly hired manager implements a dress code that requires that employees have no visible piercings or tattoos.  Sylvia says that her tattoos and piercings are religious because they reflect her belief in body art as self-expression and should be accommodated.  However, the evidence demonstrates that her tattoos and piercings are not related to any religious belief system.  For example, they do not function as a symbol of any religious belief, and do not relate to any “ultimate concerns” such as life, purpose, death, humanity’s place in the universe, or right and wrong, and they are not part of a moral or ethical belief system.

Therefore, her belief is a personal preference that is not religious in nature.

(emphasis added)  The tattoos have religious meaning in the first example.  The tattoos and piercings in the second do not.  The latter example deals with VBM that is a personal lifestyle choice rather than a religious observance.  The difference, however, depends upon the employee’s subjective belief a notoriously tricky thing to rely on when making an employment decision.

There are only a handful of significant court cases concerning VBM.  One is a published case and one is described in a press release concerning a settlement reached through EEOC mediation. 

Cloutier v. CostcoPiercing case; Verdict for Employer on grounds that it had right to dictate “professional appearance.”

Kimberly Cloutier, a clerk at Costco, had multiple ear piercings and four tattoos. Costco’s dress code prohibited piercings in any job that interacted with the public.  Cloutier was asked to remove her piercings.  In response, Cloutier said she was a member of the Church of Body Modification and piercing was a manifestation of her religion. The court opined that “Costco has a legitimate interest in presenting a workforce to its customers that is, at least in Costco’s eyes, reasonably professional in appearance.” It held that Costco would suffer an “undue hardship” in that their public image would be devalued if they allowed employees with body modification to interact with the public.

EEOC v. Red Robin Gourmet BurgersTattoo case; Settlement for Employee because Tattoos were demonstrably religious.

In its press release, the EEOC disclosed a settlement in favor of the employee on a religious discrimination case against Red Robin Gourmet Burgers.  In the case that became Guideline Example 5, above, Red Robin refused to offer Edward Rangel, a server at the restaurant, any accommodation for his Kemetic religion, an ancient Egyptian faith.  As part of his practice, Rangel went through a rite of passage where he received religious inscriptions in the form of tattoos. The inscriptions, less than a quarter-inch wide and encircling his wrists, are a verse from an Egyptian scripture and are written in a liturgical Egyptian language. The inscriptions symbolize his dedication and servitude to his creator and Rangel’s beliefs make it a sin to intentionally conceal the religious inscriptions.  He attempted to explain his faith and his need for an accommodation in the form of an exception to the policy, to no avail.  Mr. Rangel was then terminated for failing to conceal his tattoos. The case resulted in settlement to Mr. Rangel of $150,000.

Taken together, the frequently asked questions, guidelines and cases reflect a collective attitude more lenient to tattoos than to piercing and other exotic body modification.  As of this writing, it seems that a court is more likely to find for the employer in the matter of piercing (no accommodation required), and more likely to find for the employee when the modification is a tattoo (accommodation required).  This may simply reflect the current state of bias on the issue.  Tattoos are just more acceptable to the general public at this point in our style-evolution – sort of like long hair in the ‘60’s.  Moreover, neither of the two directly relevant cases involves gauges, extensions or implants, which could cause the decision to come down in favor of the employer at this point in time.

In the most recent case of E.E.O.C. v. Papin Enterprises, Inc., 2009, the plaintiff, Ms. Santiago, had a pierced nose and a nose ring.  Papin asked her to remove it during work hours under a “no jewelry policy” covering all employees in the restaurant.  Santiago claimed her nose ring was a manifestation of her religious belief but admitted it would not be a "sin to remove it."  As a compromise (and attempt at reasonable accommodation), Papin told Santiago she could cover up her nose ring with a band aid while working or, alternatively, leave the restaurant when the franchise owners came on the property.

The Court found that it did not have sufficient evidence to grant summary judgment for Papin on the issue of whether covering the nose ring would “abnegate” Santiago’s religious belief.  Moreover, it believed that, rather than simply apply the no jewelry policy across the board (which could have traction in a restaurant setting), telling Santiago to leave when the owners came on site encouraged subterfuge or fraudulent conduct on the part of Santiago. 

The result, however, could have been different.  Had the employer in Papin, consistently eliminated jewelry, as did the employer in Red Robin, Papin could have prevailed in light of Santiago's admission that wearing the nose ring was a personal choice.  Instead, allowing Santiago to wear the jewelry if hidden or leave the restaurant when told, meant that the employer’s intent was not to promote safety or hygiene (the usual basis for a no jewelry policy), but, instead, to hide the possible religious expression. 

What should an employer do now to avoid claims of “failure to accommodate” religion relative to dress codes and grooming practices?

  1.  Have a clear dress code.
  2. Articulate the basis for the code; i.e., safety, industry standards and hygiene.
  3. Document everything. 
  4. Train managers and supervisors not to have a knee jerk” reaction when faced with an applicant or employee with religious dress or grooming practices.  A dress code cannot be “one size fits all” when it comes to accommodating the wide variety of religions present in the modern workplace.
  5. Escalate each request for religious accommodation (no matter how phrased) to HR so that a consistent approach can be taken and so that any decision can be vetted by in house or outside employment counsel.

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Biography

Mary Wright is the Founding Editor of HR Gazette, an online magazine for HR professionals and employment lawyers.  She is a Shareholder and the former General Counsel of Ogletree Deakins,

the US "Powerhouse" in employment litigation according to BTI Consulting’s national survey of senior in-house attorneys.  Mary is an advice and counsel lawyer, specializing in workable business solutions to complex human resource problems. You can connect with her on Linkedin or follow her on Twitter.

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