Today, the US Supreme Court held that clothing store Abercrombie and Fitch could be held liable for its neutral, even-handed application of a policy prohibiting head ware.
The decision is a lesson for employers: when a person seeks a religious or other accommodation, applying a policy in a neutral manner can still be a violation of Title VII, which grants special treatment for certain classes of employees.
WHERE ABERCOMBIE AND FITCH WENT WRONG
Abercrombie & Fitch Stores, Inc., operates several lines of clothing stores, each with its own “style.” Consistent with the image Abercrombie seeks to project for each store, the company imposes a Look Policy that governs its employees’ dress. The Look Policy prohibits “caps”—a term the Policy does not define—as too informal for Abercrombie’s desired image.
Samantha Elauf is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf. She applied for a position in an Abercrombie store, and was interviewed by Heather Cooke, the store’s assistant manager. Using Abercrombie’s ordinary system for evaluating applicants, Cooke gave Elauf a rating that qualified her to be hired; Cooke was concerned, however, that Elauf ’s headscarf would conflict with the store’s Look Policy.
Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap.” When this yielded no answer, Cooke turned to Randall Johnson, the district manager. Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith. Johnson told Cooke that Elauf ’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.
THE EEOC SUES ABERCROMBIE AND FITCH AND OBTAINS A SUPREME COURT VICTORY
The EEOC sued Abercrombie on Elauf ’s behalf, claiming that its refusal to hire Elauf violated Title VII. After winning in the trial court, the EEOC lost before the court of appeals. Today, the US Supreme Court reinstated the EEOC’s initial victory, ruling that:
“The rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”
The Supreme Court rejected Abercrombie’s argument that its neutral policy — which treated Muslims and non-Muslims alike — was lawful:
“Abercrombie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to failor refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] ofreligious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”
For employers, applying a clothing or other policy in a neutral manner may still be a violation of the law when there is a requirement to accommodate.
Therefore, ALWAYS determine whether there is a duty to accommodate before woodenly applying any employment policy.
Gone are the days of Beaver Cleaver, Father Knows Best, and Mayberry RFD. Most young employees do not even know of these iconic TV shows or the societal norms that prevailed during their heyday.
Today it is perfectly “normal” for young — and sometimes old — people to get tattoos and wear body piercings. America has changed and will continue to change. What many call progress, others will label the decline of civilization.
MUST EMPLOYERS AND BUSINESSES CHANGE TOO?
This edition of the HR Law Insider tackles the issue of whether the law prohibits employers from dictating grooming standards and employee appearances. Employers still have significant leeway regarding grooming standards and employee appearances. However, there are significant mistakes employers can make which may expose them to liability for discrimination. This article address a common problem areas for employers by analyzing a case in which a female employee sued Costco over its policy banning facial jewelry.
THE CURIOUS CASE OF COSTCO AND “THE CHURCH OF BODY MODIFICATION”
Kimberly Cloutier began working at Costco’s West Springfield, Massachusetts store in July 1997. Before her first day of work, Cloutier received a copy of the Costco employment agreement, which included the employee dress code. When she was hired, Cloutier had multiple earrings and four tattoos, but no facial piercings.
In 1998, Costco revised its dress code to prohibit food handlers, including deli employees, from wearing any jewelry. Cloutier’s supervisor instructed her to remove her earrings pursuant to the revised code, but Cloutier refused. Instead, she requested to transfer to a front-end position where she would be permitted to continue wearing her jewelry. Cloutier did not indicate at the time that her insistence on wearing her earrings was based on a religious or spiritual belief.
Costco approved Cloutier’s transfer back to a front-end position in June 1998, and promoted her to cashier soon thereafter. Over the ensuing two years, she engaged in various forms of body modification including facial piercing and cutting. Although these practices were meaningful to Cloutier, they were not motivated by a religious belief.
In March 2001, Costco further revised its dress code to prohibit all facial jewelry, aside from earrings, and disseminated the modified code to its employees. Cloutier did not challenge the dress code or seek an accommodation, but rather continued uneventfully to wear her eyebrow piercing for several months.
Costco began enforcing its no-facial-jewelry policy in June 2001. On June 25, 2001, front-end supervisors Todd Cunningham and Michele Callaghan informed Cloutier and another employee that they would have to remove their facial piercings. They did not comply, returning to work the following day still wearing their piercings. When Callaghan reiterated the no-facial-jewelry policy, Cloutier indicated for the first time that she was a member of the Church of Body Modification (CBM), and that her eyebrow piercing was part of her religion.
The CBM was established in 1999 and counts approximately 1000 members who participate in such practices as piercing, tattooing, branding, cutting, and body manipulation. Among the goals espoused in the CBM’s mission statement are for its members to “grow as individuals through body modification and its teachings,” to “promote growth in mind, body and spirit,” and to be “confident role models in learning, teaching, and displaying body modification.” The church’s website, apparently its primary mode for reaching its adherents, did not state that members’ body modifications had to be visible at all times or that temporarily removing body modifications would violate a religious tenet. Still, Cloutier interpreted the call to be a confident role model as requiring that her piercings be visible at all times and precluding her from removing or covering her facial jewelry. She did not extend this reasoning to the tattoos on her upper arms, which were covered at work by her shirt.
After reviewing information that Cloutier provided from the CBM website, Callaghan’s supervisor instructed Cloutier and the other employee to remove their facial jewelry. They refused. The following day, Cloutier filed a religious discrimination complaint with the Equal Employment Opportunity Commission (EEOC), which is empowered to enforce Title VII. 42 U.S.C. § 2000e-5.
When Cloutier returned to work for her next shift on June 29, 2001, she was still wearing her facial jewelry. She met with the store manager about her membership in the CBM and the EEOC complaint. During the course of the meeting, Cloutier suggested that she be allowed to cover her eyebrow piercing with a flesh-colored band-aid. The manager rejected the suggestion and told Cloutier that she had to remove the piercing or go home. She left.
During the week of July 7, 2001, Cloutier inquired of her superiors whether she could use vacation time to cover her absences and was told that she had been suspended. The following week Cloutier received notice in the mail that she had been terminated for her unexcused absences resulting from noncompliance with the dress code. She claims that this was her first notice that Costco had decided not to grant her request for an accommodation that would reconcile the dress code with her religious requirement of displaying her facial jewelry at all times.
The parties remained in contact after Cloutier’s termination through the EEOC mediation process. During a meeting on August 10, 2001, Costco offered to let Cloutier return to work wearing either plastic retainers or a band-aid over her jewelry (the same accommodation that Cloutier had suggested prior to her termination). The manager repeated the offer in a letter dated August 29, 2001, asking Cloutier to respond by September 6, 2001. Cloutier argued that neither of the proffered accommodations would be adequate because the CBM’s tenets, as she interpreted them, required her to display all of her facial piercings at all times. Replacing her eyebrow piercing with a plastic retainer or covering it with a band-aid would thus contradict her religious convictions. Cloutier asserted that the only reasonable accommodation would be to excuse her from Costco’s dress code, allowing her to wear her facial jewelry to work. Costco responded that this accommodation would interfere with its ability to maintain a professional appearance and would thereby create an undue hardship for its business.
THE EEOC FINDS THAT COSTCO VIOLATED THE LAW
The EEOC determined that Costco’s actions violated Title VII of the Civil Rights Act of 1964. It found that Cloutier’s refusal to remove her facial jewelry was “religiously based as defined by the EEOC,” that Costco did not allow her to wear her facial jewelry at work, and that there was no evidence that allowing her to wear the jewelry would have constituted an undue hardship. Based on this determination, Cloutier filed a suit against Costco in federal district court in August 2002 alleging a Title VII violation. Costco ultimately prevailed, but only after significant litigation.
EMPLOYER TAKEAWAYS: HOW TO DEAL WITH GROOOMING AND DRESS ISSUES
As a best practice, managers and employees should be trained that the law may require making a religious exception to an employer’s otherwise uniformly applied dress or grooming rules, practices, or preferences. They should also be trained not to engage in stereotyping about work qualifications or availability based on religious dress and grooming practices.
Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.
For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship.
When an exception is made as a religious accommodation, the employer may nevertheless retain its usual dress and grooming expectations for other employees, even if they want an exception for secular reasons. Co-workers’ disgruntlement or jealousy about the religious accommodation is not considered undue hardship, nor is customer preference.
An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns IF the practice actually poses an undue hardship on the operation of the business. The employer should not assume that the accommodation would pose an undue hardship.
While safety, security, or health may justify denying accommodation in a given situation, the employer may do so only if the accommodation would actually pose an undue hardship. In many instances, there may be an available accommodation that will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.
The next issue of the HR Law Insider will address the related issue of whether employers can mandate different dress and grooming standards for men versus women. As demonstrated in the following video, different perceptions among men and women can often lead to misunderstandings and discord (note: humor):