Your food and beverage outlet’s uniform appearance policy requires, among other things, a standard uniform, no facial hair, no visible piercings (other than earrings), no visible tattoos, and no hats or head coverings. A female server begins wearing a head scarf to work and informs you she is doing so because she wants to be more religious. You are concerned about consistent enforcement of the appearance policy and about the reactions of customers and co-workers. You want to say no and stick to the policy. What to do?
1. Say you will have to think about it.
What you should not do is respond “No way” and follow it with a spirited talk about the importance of consistently enforcing the policy. Title VII of the Civil Rights Act requires departures from a well-established policy (i.e., reasonable accommodations) due to an employee’s sincerely held religious beliefs . A significant part of the employer’s obligation under Title VII is to be willing to interact with the employee and to engage in a process that works to eliminate the conflict between the religious beliefs and the workplace rules or requirements. So the first thing to do is delay any decision about the request and any criticism or discipline of the employee until you have carefully considered it. Tell the employee you need time to think about it and set a time to talk with the employee again.
2. Investigate the terms and reasons for the appearance policy as well as the basis for and scope of the employee’s religious belief.
Why does your company have this strict uniform policy? Have there ever been exceptions? What business objectives does it promote (e.g., a certain public image, uniformity among outlets)? Is there any data (e.g., customer surveys or complaints) to back up the enforcement of the policy? You will need answers to these questions as you consider whether to grant or deny the requested accommodation.
You also may want to inquire of the employee whether and how the accommodation is necessary as part of the employee’s sincerely-held religious belief. The belief does not have to be a tenet of a formal religion, but it cannot be a personal preference or a secular belief. The employer is allowed to ask respectful questions to help it reach the right decision. In a recent matter for one of our hotel clients, it turned out the employee was growing dreadlocks in anticipation of an audition for a role in Rent and the “religious” angle was a smokescreen. Once exposed, the employee withdrew the request for a religious accommodation and accepted a back of the house position where his dreadlocks were not in conflict with the policy.
3. Is there a more reasonable alternative?
The employer is not required to do what the employee requests, only to try to eliminate the conflict between the specific religious belief and the workplace rules. The Equal Employment Opportunity Commission (EEOC) in its Compliance Manual provides the example of an employee who, for religious reasons, asks to grow his hair long in violation of the employer’s policies. The EEOC suggests that allowing the employee to tuck the hair into his collar or to wear it clipped in back would be reasonable alternatives. Be creative. Offer something, if at all possible, that would allow the employee the opportunity to stay employed.
You must be careful about proposing transfers to the back of the house or to positions with limited guest contact. The EEOC and some courts have suggested that to do so on the basis of protecting an employer’s “image” is to discriminate against minority religious beliefs. As one court noted, “[o]ne has to wonder how often an employer will [rely on image concerns] to terminate or restrict from customer contact, on image grounds, an employee wearing a yarmulke, a veil, or the mark on the forehead that denotes Ash Wednesday for many Catholics. [C]onsiderations of public image might persuade an employer to tolerate the religious practices of predominant groups while … forbidding practices that are less widespread or well-known.”
4. If your answer to the employee’s request is “No,” be prepared to articulate the hardship to your business.
An employer can refuse to provide a religious accommodation if it would pose an undue hardship, which is a “more than de minimis cost” on the business. Undue hardship is a case-by case analysis, and it must be based on actual proof, not on assumptions or hypothetical hardships. Factors to be considered are lost efficiencies, disruptions to work routines, infringements on other employees, workplace safety concerns, and direct monetary costs (such as higher wages). In the hospitality industry, the employer often cites the need for a uniform and welcoming appearance among its employees. Unfortunately, there is little consensus about whether departures from your carefully crafted “image” or your brand are sufficient to rise to the level of undue hardship.
Costco is one of the few companies to argue successfully that the dilution of its image would pose an undue hardship. In that circumstance, Costco determined that an employee’s facial piercings based on religious beliefs would adversely affect the “neat, clean, and professional image” that the company had cultivated. A federal court of appeals agreed. Other national companies have not fared as well. One restaurant chain was confronted with an employee request to allow visible tattoos on his arms due to his Coptic beliefs. The company denied the request and claimed undue hardship based on its profile as a family-oriented and kid-friendly outlet. Unfortunately, the undue hardship defense failed due to lack of proof.
A national clothing retailer is defending several lawsuits brought by the EEOC based on its refusal to hire or accommodate Muslim women who profess a religious need to wear a hijab. In a case in Oklahoma, the retailer argued undue hardship because of the significance of preserving its image and avoiding confusion among consumers about its carefully-created brand. The employer presented proof in the forms of expert opinions and market data. The EEOC, on the other hand, noted instances of other employees wearing head scarves without harm to the business, pointed out that baseball caps and yarmulkes were allowed, and presented testimony that managers had told the employee, who worked in the stock room, that the hijab was acceptable if it matched store colors. On June 23, 2011, the federal district court in Oklahoma informed the parties that it would grant the EEOC’s motion for summary judgment and that it had determined that the employer could have accommodated the employee’s religious beliefs. A detailed opinion is expected from the court in the near future. This case should be of concern to any restaurant or hotel that has crafted a careful brand or image and that has concluded that well-accepted religious garb (such as head scarves or turbans) is prohibited in the workplace because it does harm to that image.
What will not suffice to show undue hardship is the notion that a turban or veil will make customers “feel uncomfortable.” Such a defense, according to the EEOC, is merely a statement of customer preference about religious attire and is the equivalent of blindly accepting the customer’s religious biases. Customer preference is not a valid defense under Title VII.
Religious practices and beliefs are sometimes due special treatment by employers. Before taking any adverse action against applicants or employees due to their wearing turbans or veils, consider carefully the steps outlined above and give one of the members of our Hospitality Practice Group a call to discuss further.
 This article focuses exclusively on issues of federal discrimination law. There may be state or local laws that will affect an employer’s obligations in a particular jurisdiction, and an employer should check with the Ogletree Deakins attorney with whom it normally works about local concerns before taking action prematurely.