Skirts, Hair Follicles, The Flu, And The Mark Of The Beast -- Say What?

Religious discrimination cases are dominating headlines -- and raising thorny legal issues.

Do these things have anything in common — and in an employment-law article?

Yep. They all involve employee religious beliefs or practices. We are in a period right now where religious discrimination cases are dominating headlines – indeed, where religious rights are frequently being weighed and balanced against other rights, including, of course, employers’ rights.

Hair follicles and the flu? Huh? Religious discrimination?

As I’ve noted for a long time, the workplace is a microcosm of society. And religion is always a hot-button topic. So put the two together …

Is there some way to accommodate diverse religious beliefs in the workplace?

What Does Title VII Require?

Title VII does not prohibit employment dress or grooming rules per se, as long as these company rules do not have a “disparate impact” on, for example, employees who have religious beliefs (or also a disability) that require a certain dress or hairstyle. Title VII does, however, require an employer, once 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.

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And usually the proposed accommodation is neither burdensome nor a hardship.

Grooming And Dress

So is this is where hair follicles, skirts (and dreadlocks) come in?

Religious beliefs and practices are diverse — some employees are required by these beliefs to wear skirts or dreadlocks. Which sometimes conflict with corporate “appearance policies.”

For example, a Florida hospitality industry staffing company just settled an EEOC lawsuit in which it was alleged that the company failed to provide a reasonable accommodation to a Rastafarian employee “when it required him to cut his dreadlocks to comply with its client’s grooming standards. … Rastafarians wear dreadlocks as part of their sincerely held religious belief, and making an employment decision because of such a religious practice violates Title VII of the Civil Rights Act of 1964.”

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The EEOC also just settled a suit with a Houston manufacturer in which it was alleged that a job applicant, a member of the Nazirite sect of the Hebrew Israelite faith, had an oral job offer “contingent upon his successful completion of a pre-employment drug test.” This involved yanking out a hair follicle for testing.

Why did he refuse?

Not because it hurt, but because “the Old Testament forbids him from cutting hair from his scalp.” He offered other seemingly reasonable alternatives, however, such as using a hair from his beard. Now there’s a reasonable option!

However, he was not hired.

Similarly, a job applicant in Texas who is a Hebrew Israelite with dreadlocks settled for $150,000 after alleging that his job offer was rescinded when he refused a hair-follicle drug test and proposed instead using hair from his beard for drug screening.

Beard hair versus scalp hair? Location, location, location!

And the EEOC just sued a Virginia security services firm on behalf of a Muslim employee whose beliefs require him to have a beard. The company, however, has a grooming policy that “restricts guards’ facial hair to no longer than one-quarter of an inch.”

Hair — anyplace above the neck — sure does take up a lot of space in this area of the law. Being an aging boomer and former would-be hippie, I sorta get the idea — it’s often not about the hair.

You Must Wear Pants!!

Now we come to dress.

A female employee recently breached the “standard uniform” of a Tim Horton’s in Michigan — wearing pants — by wearing a skirt. She was fired.

Why did she wear a skirt?

She is of the Pentecostal Apostolic faith, which forbids her from wearing pants.

The EEOC promptly sued, with one attorney declaring that “It would have been simple to allow [her] to wear a skirt, and would not have negatively impacted the business in any way. Employers have an obligation to provide these types of reasonable religious accommodations.”

Yep, this is, indeed, the law.

The Mark Of The Beast – Religious Belief Meets 21st Century Technology

Don’t think Stephen King this time.

The EEOC brought a religious discrimination suit against a Pennsylvania coal company for refusing to accommodate (and forcing to retire) an Evangelical Christian who had been an employee for 35 years.

The reason?

It had just implemented a newfangled employee time and attendance tracker – a biometric hand scanner. The problem was that the employee refused to use it, claiming that there was a “relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament.”

This was his genuine, firmly held religious belief.

A federal court of appeals affirmed a jury award in his favor, stating that “although [the employer] was providing an alternative to employees who could not use the hand scanner for non-religious reasons, it refused to accommodate [his] religious objection. Forced to choose between his religious commitments and his continued employment, [he] retired under protest.”

That is, non-religious exemptions to the use of the hand scanner were given — but not to him, who had a religious objection.

Once again, it all comes down to reasonable accommodation.

The Flu? In An Article On Employment Discrimination?

Finally – the flu. Everyone gets the flu – what’s the religious issue here?

Well, it’s not the illness, but the vaccine that is front and center.

Seems that a Pennsylvania health center recently settled an EEOC case brought on behalf of a class of six former employees who alleged that a corporate-required seasonal flu vaccination requirement violated their religious beliefs.

Sounds like a reasonable requirement in a health center, right? But there was an exemption policy — face masks. And like the Mark of the Beast case, it appears that the exemptions were given to fourteen employees who provided medical objections, but excluded the six plaintiffs with religious objections.

Can’t do that!

Takeaway

As seen from these cases, it isn’t so hard to accommodate employees when there is a conflict between a religious belief or practice and a work rule. Usually, there are easy modifications to permit an employee to continue to work without violating his religious beliefs.

Hmmm. Maybe it’s not the rules — maybe it’s simple intolerance?


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.