Its been almost a year since my partner Christina Stoneburner wrote about whether workplace prohibitions relating to dress, tattoos or grooming habits violate Title VII. See blog of 7/29/11.  Title VII does not prohibit dress or grooming rules or employer acts based upon them, and Michigan is the only state with such laws.  However, a religious accommodation must be made if the dress or grooming rule or policy impacts employees who are members of a protected group. In that case, as with most situations involving religious beliefs, an employee must be accommodated as long as this does not cause an undue hardship to the employer.

These rules can get complex, and it is recommended that counsel be consulted before an employer makes a blanket refusal of an employee’s accommodation request.

A few recent cases serve to remind us that just because employers have a policy that appears neutral on its face by, for example, prohibiting all employee from wearing or displaying things like tattoos, piercings, long hair, or head scarves, the policy may still run afoul of Title VII’s prohibition against policies which have a “disparate impact” on employees with certain religious beliefs or practices. See yesterday’s blog for our discussion of “disparate impact.” A few recent cases are illustrative. 

Last year we reported a case filed by the EEOC against Abercrombie & Fitch where an Oklahoma jury awarded $20,000 in damages to an applicant for a job after the employer refused to hire her when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim. The employer argued that it had a strict "Look" policy in order to insure a unified "preppy" brand image.

We also noted a Title VII filing by the EEOC against a Taco Bell franchise owner (EEOC v. Family Foods, Inc.) alleging that its termination of a devout Nazirite due to his failure to cut his hair was religious discrimination. Nazirites do not cut their hair as a sign of devotion to God. The employee had worked for Family Foods for six years without cutting his hair (in fact, he had not cut his hair since he was 15 years old) before the company tried to enforce its grooming policy that required him to cut his hair.  Occupational Health & Safety now reports that Family Foods has just entered into a consent decree whereby it settled the case and agreed to pay the employee $27,000, and also to adopt a formal religious accommodation policy, to do appropriate annual trainings on Title VII, and also to post a copy of its anti-discrimination policy at all of its facilities.

These cases indeed had a religious component, and an EEOC attorney commented that “No person should be forced to choose between his religion and his job when the company can provide an accommodation without suffering an undue hardship.”

Without some evidence that there are religious overtones regarding a dress or grooming policy, the results may be different.   A recent story by Steve Giegerich of The St. Louis Post-Dispatch reports on an employee with dreadlocks who had been working at a convenience store and gas station for four months who was barred from work because his hair violated the employer’s written policy which states that hair must be "kept neat and clean…immoderate styles… such as corn rows, braids etc. must be approved by a supervisor … dreadlocks and mohawks are unacceptable."

As Giegerich accurately reported, “policies on the personal grooming habits of employees land on the edge of state and federal employment discrimination laws,” and in all states but Michigan, employers have the right to terminate or suspend any employee who fails to comply with grooming guidelines.

He quoted an EEOC attorney who, agreeing with our analysis above, stated that "The baseline for evaluating grooming policies is to look at their overall burden on different groups of employees." If the policy applies to all employees but has a disparate impact on a protected class of employees, oh say Nazirites, it may violate Title VII.

Significantly, the reported story noted no sincerely held religious beliefs of the employee regarding his wearing of dreadlocks. Absent any such evidence, it would appear that his wearing of dreadlocks could be prohibited by the employer.

A Missouri Department of Labor spokeswoman quoted by Giegerich summed up this area of the law fairly well:

"An employer may condition a job on an employee’s compliance with the employer’s hair styling preferences, unless the employee’s alternative hair styling preference is connected with the employee’s inclusion in a protected category. For example, a particular hair style may be a tenet of the employee’s religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer)."