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Could that dress code be worthless?

Rich MeneghelloPop quiz: Your company has a strict dress code, and you have always consistently held your employees to it. A new employee shows up for work one day blatantly violating the policy. You can discipline this employee without a second thought, right? Wrong. Before enforcing your dress or appearance policy, you better make sure that the employee is not claiming the reason for such an appearance is because of his or her religion.

The Equal Employment Opportunity Commission recently issued a new set of reminders to employers summing up the obligation to accommodate workers’ religious beliefs, focusing on religious clothing and other appearance-based practices.

The main thrust of the new EEOC publication is that employers may need to make exceptions to their usual rules or preferences to permit workers to observe religious dress and grooming practices. They point out the most common practices that employers encounter on a frequent basis: religious clothing like a headscarf, turban or cross; clothing prohibited by a religion; and religious requirements to grow hair, including beards, dreadlocks or sidelocks.

But this is just the tip of the iceberg. The guidance cites a variety of religious practices – some that are unique or unusual enough that an average employer may not be prepared to accommodate them.

Some examples provided in the guidance are fairly obvious and easy to understand. A Muslim employee at a bank wants to wear a headscarf during Ramadan, and the employer would need to make an adjustment to its dress code to permit it. A Jewish consultant on a long-term assignment with a client should not be forced to abandon his yarmulke despite any client reservations. A Catholic librarian at a public library needs to be allowed to maintain black ashes on her forehead on Ash Wednesday.

However, employers should recognize that the rules don’t apply only to common religions; instead, the EEOC employs an incredibly broad definition of what a “religion” is. Employers can’t consider only Christians, Jews and Muslims and think that all others are outside the mainstream boundaries. The EEOC believes that just about every religious observance, practice or belief should be protected, even if it belongs to new, uncommon, nontraditional religions, and those not part of a formal church or sect.

Any practice based on theistic beliefs or nontheistic moral/ethical beliefs can be considered protected, and rarely is a case dismissed because the worker’s belief is not recognized as “proper.”

One of the examples provided in the guidance involves a worker observing an ancient Egyptian faith called the “Kemetic” religion, where he is affiliated with a tribe of fewer than 10 other people. As part of his religion, he has small tattoos around his wrist written in the Coptic language, and he claims that covering them would be a violation of his beliefs. The EEOC says that an employer would have to accommodate him by allowing him to display them, even if its policy bans visible tattoos.

Some people might ask: “How am I supposed to know whether some tattoos are religious in nature, or whether someone’s hair length is guided by his or her beliefs?” The good news is that the EEOC states that unless the nature of the practice is obviously religious, the employee has the obligation to trigger the process by notifying the employer.

For example, if you tell an applicant that he would need to shave his beard if he worked for you, and he never tells you he is growing it because of his religion, he can’t prevail in a lawsuit against you. The same thing goes for employees – if you discipline someone for a dress code violation, but the person doesn’t tell you why he or she is doing it, you shouldn’t be in trouble.

However, the EEOC points out that the employee need not use any “magic words” to request an accommodation; simply notifying you that the practice is religious-based is enough. For example, when a Native American restaurant server was told that he needed to cut his hair “short and neat” per company policy, and he offered to wear it neatly in a ponytail or held by a clip to accommodate his religious beliefs, the employer should have understood what he meant and gone through an accommodation process. Its failure to do so led to discrimination liability.

Another question employers often ask is about the reaction of customers or co-workers. If customers would be offended or upset by seeing someone outside the norm of what they expect, or other workers held to the same standards are disgruntled or jealous seeing someone get away with a flagrant uniform violation, what role should that play in the process? The EEOC says it must play no role whatsoever.

Employers have an obligation to follow the law and can’t be swayed by customer complaints or co-worker grumblings. In fact, the only kinds of things that can allow an employer to block an accommodation request would be safety, security or health concerns. If an employee worked in a sterile environment, perhaps, and refused to wear a face mask over his beard, he would not need to be accommodated. Or if an employee said she needed to wear a long, free-flowing skirt instead of more form-fitting uniforms, and the employer had a sincere concern about the clothing being caught in machinery, that may also qualify as a legitimate justification.

The EEOC says that an employer can also get away with rejecting an accommodation if the request would cause an “undue hardship,” but it never quite gets around to explaining scenarios that would qualify. In other publications, the EEOC has noted that an undue hardship means the accommodation would impact the efficiency of other jobs, infringe on other employees’ job rights or benefits, or cause co-workers to carry a greater share of potentially hazardous or burdensome work. The fact that the federal agency didn’t discuss this issue in depth in the 15-page guidance shows you that this is a disfavored excuse, and one that probably will not be looked upon kindly if employed as a defense.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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