Cases involving the same or similar fact situations keep coming, leading one to believe that employers have no clue as to the law, and/or that they have no HR directors or counsel.
For example, we wrote a few times recently that although Title VII does not prohibit dress or grooming rules per se, such rules may still violate Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style. 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.
We cited a few cases 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. One such case involved Abercrombie & Fitch, where an Oklahoma jury awarded $20,000 in damages to a job applicant who was denied hiring when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim. The employer unsuccessfully argued that it had a strict "Look" policy in order to insure a unified "preppy" brand image.
Despite what would appear to be settled law, the EEOC announced yesterday that it had entered into a consent decree with an assisted living center, Morningside House of Ellicott City, Maryland, which failed to hire to a Muslim woman as a certified nursing assistant because she refused to remove her headscarf, which she contended was a religious obligation. The employer, apparently seeking to make out a case of “undue hardship,” made a weak claim that the headscarf could interfere with the woman’s ability to work her position, although the woman argued that she had worn the headscarf during her nursing training, which included working in the operating room, and that it had never interfered with her ability to perform her duties.
The woman was given $25,000, and the employer has now been ordered to refrain from further discrimination against anyone on the basis of religion; ordered to provide religious discrimination training to supervisors, managers and all involved in the hiring process; ordered to post a notice stating its commitment to maintaining an environment free of religious discrimination; and ordered to submit copies of any complaints about religious discrimination to the EEOC for a period of two years.
An EEOC attorney commented: “In this case, there was no undue hardship to the employer — just an apparent overreaction to a reasonable request because of myths and stereotypes about a religion.”
When will employers and/or their trusted HR people and advisors learn the law?