Employer “Look” Policies and Religious Discrimination

hijab

Think carefully before making employment decisions based on company image.

When a Disney restaurant hostess launched a religious discrimination lawsuit against the company for not allowing her to wear the hijab at work, it raised some provocative issues for employers in businesses that rely on a “look” to sell their product or experience. On one hand, the hostess has a legal right to not be discriminated against for her religious beliefs, which include the wearing of a headscarf. On the other hand, Disney is a company with a very specific image that requires employees to look a certain way.

But Who’s Right?

“It depends on who you ask,” says attorney Jonathan Hyman, a partner in the Labor & Employment Group at Kohrman Jackson & Krantz. “I think the answer probably falls somewhere in the middle.”

The issue of “look policies” has been getting significant attention for a few years, says Hyman, starting with the aggressive challenging of these cases by the EEOC. These policies are more prevalent in industries such as retail, where companies are selling a style and require their staff to embody that style.

“The EEOC has litigated a series of lawsuits against retailers like Abercrombie & Fitch that have refused to hire Muslim women who wear the hijab and don’t fit into the look they want to project to their customers,” says Hyman.

“It is, to a large extent, a style or a look they are selling… and so in my mind, to say if you want to wear a religious garment that is going to cover you from head to toe and want to work in our store selling our clothing, I’m not sure how you accommodate that… To me that looks more like an undue hardship on the part of the company than it does an accommodation that needs to be made for a particular employee’s religion,” he says, adding that the EEOC has been fairly successful in challenging it, however.

Suspension of Disbelief

A company like Disney may have a stronger case. “They have, since 1955, had a look policy. It is a formal 20-page document that says if you’re going to work at Disneyland or Disney World, this is what you have to comply with. Because we want to be able to suspend disbelieve for our guests,” he says.

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The Disney policy is so detailed as to prescribe skirt lengths, facial hair policies, whether tattoos or piercings are permitted, etc, and the requirements are broken down based on the role of the employee.

“They’re selling the experience. Clearly I think they have the right to say this is what people are buying and for that reason we are going to regulate what you can and can’t look like if you’re going to choose to work in this particular facet of our business,” says Hyman.

Disney goes to great lengths to protect their image as a land of “make believe,” referring to their employees as “cast members”. Would an actress be able to claim discrimination for not being allowed to wear her hijab while playing the role of Scarlett O’Hara?

Clearer Waters for Employers

Despite the murky waters surrounding some of the style-based accommodation issues, there are other cases that are far clearer.

“There have been cases where an employer says it makes people uncomfortable,” says Hyman. “Clearly that’s not a reason not to allow accommodation.”

On the other hand, sometimes there are safety issues, says Hyman. If an employee is working with heavy equipment, and a loose fitting garment could get caught in a gear or in a piece of equipment, safety could be a legitimate reason to deny a request for accommodation.

While “look policies” are likely to continue in some companies, either implicitly or explicitly, the workplace is becoming more and more diverse and there will likely be more corresponding challenges to them. Some employers may have to be more accommodating to avoid the negative publicity and expensive litigation they bring.

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Article Published August 11, 2011

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