Regulating Religion-Based Staff Appearance

Legal Brief

An elementary school cafeteria monitor shows up for work one day proudly showing off his first-ever tattoo to his fellow employees. His principal views it, then shares with him the district policy prohibiting visible tattoos in the workplace.
In response, the employee informs the principal that the tattoo is the primary religious symbol of the sect he has just joined, and he is forbidden to cover it. The principal calls the superintendent, asking what she should do now.

Sincerely Held Beliefs

Matters of employee dress, grooming and appearance are generally subject to the reasonable policies of an employer. Employers have broad discretion in regulating employee appearance at work, including clothing, jewelry, headwear, hair (including facial hair) and even shoes.

However, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on their religious beliefs. This prohibition applies to matters of personal appearance that are part of an employee’s “sincerely held” religious belief or practice. Matters of employee religious dress and grooming may not be used as a basis for disparate treatment of the employee, workspace segregation, harassment or retaliation.

For example, a school district could not assign an employee to a “back room” position because of his religion-based appearance nor because parents, students or co-workers don’t approve of his appearance. A female employee cannot be required to wear pants rather than a skirt as part of a school uniform or to remove a head covering if her religious practices require it, even though both are required by district policy. A “no facial hair” policy for district security officers would not apply to a male employee whose religious beliefs require a beard.

Undue Hardship

Employers always must seek to first make reasonable accommodations for the sincerely held religious practices of employees. A reasonable accommodation is one that does not result in “undue hardship” for the employer. The fact that the employer must expend funds or make minor adjustments in work schedules, make exceptions to policies or practices, or endure disgruntlement from other employees does not rise to the level of undue hardship.

Undue hardships most often arise in the area of health, safety and security. Dangling jewelry can be dangerous near heavy machinery; a turban could be used to smuggle contraband into a secure environment such as an alternative school. Employers may be able to restrict religion-based grooming and clothing in these circumstances but must still go through an analysis of the necessity of the policy or practice and determine whether less burdensome alternatives exist.

For example, a turban could be searched each day upon the employee’s entrance to the facility; loose jewelry could perhaps be temporarily secured rather than prohibited. In practice, the burden lies with the employer to establish that intrusion upon the employee’s religious appearance is necessary. In any situation where the employee’s appearance is an issue, the clear benefit of the doubt goes initially to the employee.

This is true without regard to the fact the employee’s religious practice is something new; that the employee’s beliefs are unusual or practiced by only a small group of adherents; or that the employee’s need to maintain a certain religious appearance occurs only sporadically. The threshold for these matters is whether they are sincerely held.

The employer is entitled to make a reasonable, good-faith request of the employee to produce the religious basis for the clothing or appearance. Once the employee does so, then the burden again shifts to the employer to establish hardship that would compel the employee to change his or her appearance.

Case by Case

Given the diversity of religious practices that are present in our society, each situation will require an individual analysis based on its particular facts. No one rule will apply in every circumstance. And situations requiring religious accommodation tend to be relatively rare.

Helpful resources are available at www.eeoc.gov.

Wayne Young is the executive director and general counsel for the Kentucky Association of School Administrators in Frankfort, Ky. E-mail: wayne@kasa.org