The Health Care Manager Volume 32, Number 4, pp. 294–302 Copyright # 2013 Wolters Kluwer Health | Lippincott Williams & Wilkins

Dress Codes and Appearance Policies: Challenges Under Federal Legislation, Part 1 Title VII of the Civil Rights Act and Religion Michael S. Mitchell, JD, LLM; Clifford M. Koen Jr, JD; Thomas W. Moore, PhD As more and more individuals choose to express themselves and their religious beliefs with headwear, jewelry, dress, tattoos, and body piercings and push the envelope on what is deemed appropriate in the workplace, employers have an increased need for creation and enforcement of reasonable dress codes and appearance policies. As with any employment policy or practice, an appearance policy must be implemented and enforced without regard to an individual’s race, color, sex, national origin, religion, disability, age, or any other protected status. A policy governing dress and appearance based on the business needs of an employer that is applied fairly and consistently and does not have a disproportionate effect on any protected class will generally be upheld if challenged in court. By examining some of the more common legal challenges to dress codes and how courts have resolved the disputes, health care managers can avoid many potential problems. This article addresses the issue of religious discrimination focusing on dress and appearance and some of the court cases that provide guidance for employers. Key words: appearance policy, dress code, federal legislation, harassment, health care managers, religious discrimination

F YOU ARE a manager in the health care industry, you have undoubtedly been tasked with coping with a tremendous increase in governmental regulations as a result of the Affordable Care Act. Because of the broad sweeping nature of this legislation, the health care industry is not alone in scrambling to determine how this legislation will actually affect organizations, as most all other industries also share this

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Author Affiliations: Fisher & Phillips LLP New Orleans, Louisiana (Mr Mitchell); Department of Management and Marketing, East Tennessee State University, University Avenue, Johnson City, Tennessee (Mr Koen); and Department of Management and Marketing, East Tennessee State University (Dr Moore). The authors have no conflicts of interest. Correspondence: Cliford M. Koen Jr, JD, Department of Management and Marketing, East Tennessee State University, University Avenue, Johnson City, TN 37614-1709 ( [email protected]). DOI: 10.1097/HCM.0b013e3182a9d878

burden. In addition to increased governmental regulation, you might be interested to know that health care managers may be among an increasing number of managers in all industries that share another common connection. You may ask what possible connection health care managers may have with managers in such organizations as Disney, Home Depot, Taco Bell, Belk, Burger King, Autozone, and the New York Police Department (NYPD). These organizations are just a few examples of those that have been exposed to discrimination claims focusing on aspects of employees’ appearance such as grooming, dress, head wear, jewelry, and a host of others. Many of these claims are based on religious discrimination grounds and have been a growing potential pitfall for organizations as the number of Equal Employment Opportunity Commission (EEOC) charges continues to trend upward. Appearance-based religious discrimination claims not only are found in most every industry, but they also stem from individuals of

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Challenges of Dress Codes and Appearance Policies all ages, for a variety of appearance aspects, and a large range of religions. For example, in August 2012, Burger King came under scrutiny for religious discrimination from a 17-year-old girl. During the girl’s interview, she informed Burger King management that she would be unable to wear anything other than a skirt to work because of her Pentecostal Christian beliefs. This particular denomination of Christianity believes in an interpretation of the Bible that prescribes sex-appropriate clothing. Burger King management told her that she would be able to work in a skirt, but when the girl arrived at her orientation, she was told that she could not work in a skirt, and consequently, she was sent home and was asked never to return to work. The EEOC was informed and quickly filed a religious discrimination suit against Burger King. An adult Sikh male also filed a religious discrimination suit. In September 2010, the EEOC filed a religious discrimination lawsuit on behalf of Autozone employee Frank Burroughs. Mr Burroughs’s claim was that Autozone would not allow him to wear a turban and a religious bracelet after he recently converted to the Sikh religion. Autozone was subsequently made to pay $75 000 plus attorney’s fees to Mr Burroughs, and Autozone agreed to adopt a formal policy prohibiting religious discrimination. In addition, Autozone managers were made to undergo training in regard to religious discrimination and report all religious accommodations, complaints, and outcomes to the EEOC. Trevor Keezer, a 20-year-old from Florida, was fired from Home Depot. Trevor claims that he was fired for wearing a button on his apron that stated ‘‘One nation under God, indivisible.’’ According to Trevor, he had worn the button over a year, but after he started bringing his Christian Bible to work to read on his breaks and lunchtime, Home Depot management told him he would have to remove his button from his apron. When he refused to remove his button, he was fired for violating the company’s dress code. He ultimately filed a religious discrimination suit against Home Depot. Even the NYPD is not immune from religious discrimination claims. A former male cadet, Fishel Litzman, filed a lawsuit against the NYPD claiming he was dismissed a month before

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he was supposed to receive his shield because he refused to shave his beard for religious reasons. Mr Litzman is a Hasidic Jew and is forbidden to shave his beard. The NYPD attempted to accommodate him by asking him to keep his beard under 1 mm in length. Because this attempt at accommodation would still require him to cut his beard, he refused and is filing suit on the grounds of religious discrimination. In addition to religious discrimination claims about such appearance aspects as headwear, jewelry, and dress, there is also the potential for religious discrimination claims resulting from employees with tattoos, piercings, and other body modifications. In fact, there is a Church of Body Modification where believers practice their religion through performing and displaying their various body modifications. In September 2010, 14-year-old Ariana Lacono was expelled from her North Carolina high school for wearing a nose ring. Through the help of the American Civil Liberties Union, Ariana filed a suit claiming that her religious liberties had been violated because she was a member of the Church of Body Modification. In October 2010, a judge ordered the high school to suspend their dress code for Ariana and she returned to school. Therefore, at this point, with the number of individuals with tattoos and body piercings continuing to rise, and new tattoo and body piercing shops springing up all the time, you may be wondering how to navigate this potential minefield. Headwear, jewelry, dress, tattoos, and piercings may be great for an individual’s personal and religious expression, but are they good for your business? What about your image? Is there anything you can do about it? Legally that is? The answer is a resounding yes. Employers have considerable control over the dress and appearance of their employees. The key is to carefully draft and consistently enforce a reasonable dress code. There is no legal requirement for a dress or appearance policy. However, having such a policy in place before a tattoo, nose ring, haircut, or head covering becomes an issue allows you to defend claims of discrimination. More importantly, a well-written policy can help protect a company’s public image, promote a productive work environment,

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comply with health and safety standards, and even prevent claims of unlawful harassment. Discrimination based on a physical characteristic alone does not violate Title VII, unless issues of race, religion, sex, or national origin are intertwined. A dress and appearance policy based on business needs that is applied uniformly will generally not run afoul of employees’ seemingly expanding civil rights. When drafting and implementing an appearance policy, take the time to ensure that any appearance policy is based on justifiable business reasons and does not have a disproportionate effect on particular segments of the workforce, particularly those in a protected category. As with all employment policies, of course, employers must ensure that such policies are applied consistently and fairly, without regard to an applicant’s or employee’s race, sex, national origin, religion, color, disability, age, or any other protected status. To help guide health care managers in making and enforcing dress codes, the discussion that follows examines some common legal challenges to dress codes and suggests ways in which employers can avoid potential problems. Although this article focuses on federal antidiscrimination and labor laws, the reader should also be aware of any state laws that could affect the ability to implement and enforce certain aspects of appearance policies. Furthermore, policies for public employers may be subject to constitutional challenges not applicable to private employers. Nothing in this article is intended to be legal advice. All policies and procedures that impact employment decisions should be reviewed by qualified legal counsel. DISCRIMINATION LAWS Religion: the special importance of religious discrimination laws Although Title VII’s protection of religious beliefs is identical to that of other protected classes in most ways, it is unique in its underpinnings, enforcement, and scope. The protection of religious freedom has been fundamental to American society since the First Amendment to the United States Constitution. It may be for

that reason that the EEOC, which is responsible for the enforcement of Title VII, spends a disproportionate amount of time and resources enforcing Title VII’s proscription against religious discrimination. In addition, because of the important role that religious freedom plays in our society, as discussed more fully below, Title VII’s protection goes beyond mere negative restrictions to impose an affirmative obligation on employers to reasonably accommodate religious beliefs. Government employers should also note that state and federal constitutional laws, which are beyond the scope of these materials, may apply where religious freedom is at issue. The definition of religion With the ever-increasing number of religious groups and practices in the United States, employers rightfully ask: How does one define ‘‘religion’’? Unfortunately, in an environment of increasing religious discrimination litigation, especially in the aftermath of the events of September 11, 2001, the answer is not always clear. Title VII generally defines religion to include ‘‘all aspects of religious observance and practice, as well as belief.’’ Some members of the US Supreme Court have further defined the term religious belief as follows: ‘‘A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption. . .’’ (Welsh v United States). The EEOC defines religion even more broadly, as follows: ‘‘moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.’’ To constitute a valid religious belief subject to the protections of Title VII, the belief must be sincerely held. However, while the requisite sincerity may be lacking where an individual acts in contradiction of the alleged belief, courts interpreting Title VII do recognize that beliefs can change. It is also important to note that a certain belief is not required to be espoused by any particular religious sect, or even by the other members of a sect, to be considered sincere. In addition, Title VII protects the right

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Challenges of Dress Codes and Appearance Policies not to believe as well as the right to believe; atheism has been determined by the courts to be a religion. RELIGIOUS PROTECTION UNDER TITLE VII Disparate treatment Title VII protects employees against disparate treatment based on one’s religion to the same extent as it protects employees who fall within other protected classes, such as sex, race, and national origin. The pivotal question is whether the adverse employment action at issue was based on the individual’s religion. To answer that question, courts will compare the treatment of other individuals who do not hold the same religious beliefs. While an employer generally must be informed of the nature of an employee’s religion to be liable for allegedly discriminatory conduct, this prerequisite may be satisfied by careless comments about an employee’s dress, appearance, or habits, to the extent that the dress, appearance, or habits derive from an employee’s religious beliefs. It is extremely important to educate supervisors and employees about workplace diversity and your company’s antidiscrimination/antiharassment policy, dress, and appearance policies. It is equally important to strictly monitor and enforce such policies. Religious harassment As in cases of alleged sexual or other harassment, an individual alleging religious harassment generally must demonstrate verbal or physical conduct that is so severe and pervasive that it would subject a reasonable person to a hostile work environment. The problem of unlawful religious harassment is unique, however, in that religion poses an especially broad ground for disparagement. Thus, in addition to comments that directly attack an employee’s religion, comments about dress, diet, and other practices may also satisfy this standard, to the extent they are part of an individual’s religious beliefs. Again, a well-crafted and strictly and consistently enforced dress and appearance policy may be 1 significant step in the avoidance of unlawful harassment.

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In addition, as with other forms of unlawful harassment, an employer may be exposed to liability for so-called quid pro quo harassment. This type of harassment occurs, for example, when a supervisor demands that an employee engage in unwelcome religious activity to obtain or retain a job benefit. In one case, an employee successfully sued for quid pro quo harassment where he was required to attend a staff meeting where religious talk and/or prayer took place (Young v Southwestern Sav. & Loan Ass’n). In another, an employer was found liable where a manager was required to adhere to his employer’s religious values, including a policy requiring women to wear skirts, as a requirement of continued employment (Mandeville v Quinstar Corp). Both hostile environment and quid pro quo harassment claims could support an employee’s claim of disparate treatment, and vice versa. In addition, alleged religious harassment may augment a collateral claim for racial or national origin harassment or discrimination. Duty to accommodate religious beliefs Although Title VII’s prohibition against religious discrimination and harassment generally mirrors the protection afforded sex, race, and national origin, Title VII’s protection of religion goes a step further. Thus, unlike most other protected classes, Title VII has also imposed a duty to give preferential treatment, or so-called reasonable accommodation, to religious beliefs that otherwise conflict with an employer’s valid workplace rules. In general, where an employee can show that he or she has a bona fide religious belief that conflicts with an employment requirement and the employer was informed of this belief, the employer must offer a ‘‘reasonable accommodation’’ or establish that the accommodation sought cannot be accomplished without ‘‘undue hardship.’’ The most prevalent religious accommodation issue arises from the conflict between religious practices and work schedules. For instance, in the case of individuals who observe their Sabbath from sundown on Friday to sundown on Saturday, an employer may be required to grant

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leave where there is a readily available replacement, to make reasonable efforts to obtain replacements, to allow an employee to find a qualified substitute, and/or to help the employee find a replacement by providing a list of employees or allowing the employee to advertise the need for a swap. An employer may also be required to offer a transfer or demotion if there are no swaps available. Other examples of accommodation issues include (1) accommodating an employee’s religious practices to the extent that they render him or her temporarily unable to safely perform his or her required duties (eg, an employer may have a duty to attempt to accommodate off-duty peyote use—Toledo v Nobel-Sysco, Inc); (2) allowing an employee to forego attendance at employer functions based on religious objections; (3) making exception to the practice of requiring on-call technicians of both sexes to sleep in the same room; and, as will be discussed more fully below, (4) modifying dress and grooming policies that conflict with religious practices. For example, the EEOC filed suit against Red Robin Gourmet Burgers, Inc, on behalf of a former employee whose religion was an ancient Egyptian faith known as Kemetic or Coptic. The plaintiff had tattoos circling both wrists. The tattoos, which were bands less than a quarterinch wide, contained writing that translated into ‘‘My Father Ra is Lord. I am the son who exists of his Father; I am the Father who exists of his son.’’ The employer implemented and enforced a policy providing that ‘‘body piercings and tattoos must not be visible.’’ When asked to cover his tattoos, plaintiff claimed that, as a part of his religion, it would be a sin for the tattoos to be intentionally covered. In denying the employer’s motion for summary judgment, the district court held that the employee established that he established a prima facie case of discrimination because he had a bona fide religious belief (EEOC v Red Robin Gourmet Burgers, Inc). How does an employer know that an accommodation might be necessary? As a general rule, an employer must know about the need for religious accommodation

before the employer is obligated to offer one. However, some courts have held that an employee need not explicitly ask for an accommodation based on religion. Instead, an employer’s obligation is triggered where it has sufficient information about an employee’s religious needs to permit it to understand the existence of a conflict between the employee’s religious practices and its job requirements. Moreover, although the employee may offer one or more suggested accommodations, most courts do not require him or her to do so. Thus, once management is aware of the need for an accommodation, the employer must conduct an investigation as to the availability of a reasonable accommodation, whether or not the employee has asked for one. Even where no reasonable accommodations are possible— where, for example, the employer is required by law to obtain employees’ social security numbers and an employee refuses to give it because he considers it ‘‘a mark of the beast’’—employers are best advised to undertake some review (Hover v Florida Power & Light Co). An exception to this rule may exist in the presumably rare situation where an employee makes it clear that any but his or her own proposal will be rejected, and his or her proposal is either not reasonable or will pose an undue burden. Obviously, it would be an exercise in futility to conduct an independent review under those circumstances. What is ‘‘reasonable’’? Finding an accommodation that is reasonable will depend on the particular circumstances of each case. However, it is clear that, to be reasonable, the proposed accommodation must address all religious beliefs that conflict with the employment practice in question. For example, allowing a Sabbatarian to leave for a 2-hour lunch does not accommodate his belief that all Saturday work is prohibited (of course, as discussed below, forgiving all Saturday work may pose an undue burden). An employer normally satisfies its duty by offering any reasonable accommodation. You are not required to provide the most reasonable accommodation, nor the accommodation

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Challenges of Dress Codes and Appearance Policies preferred by the employee. In fact, you may not even be required to consider an employee’s requested accommodation at all if you provide a reasonable accommodation. On the other hand, it may be helpful to consider an employee’s suggestion before considering other options, as the requested accommodation may be less burdensome than you might have otherwise suspected. Also, a documented consideration of the employee’s suggested accommodation may help to avoid a claim of failure to accommodate and/or religious discrimination. It is also clear that a reasonable accommodation will not exist where an employer has unreasonably delayed in offering it. An unreasonable delay may be considered no accommodation at all if the employee reasonably believes he or she is faced with a choice between his or her job and his or her religious beliefs. What are the employee’s obligations? The reasonable accommodation process is not one sided. An employee has an affirmative duty to cooperate in the reasonable accommodation process. Obviously, an employee has an obligation to explain the conflict between the employment practice and his or her religious beliefs to facilitate the process. In one case, the court found that the employee had made it impossible for his employer to accommodate him because he refused to explain why his religion prevented him from signing the consent form for drug testing (Cary v Carmichael). In addition, an employee must cooperate in the employer’s reasonable attempt to accommodate his or her beliefs. Thus, for instance, where an employer offers the opportunity to bid on alternative positions that would accommodate the employee’s religious restrictions, with a guarantee that he or she would obtain at least one alternative position that would accommodate his or her needs, the employee must cooperate and bid on one or more jobs even if he or she does not consider them to be optimal. WHAT IS AN ‘‘UNDUE BURDEN’’? Title VII specifically provides that an employer has no obligation to accommodate an

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employee’s religious beliefs where accommodation would pose an undue burden. In 1977, in the case of Trans World Airlines, Inc, v Hardison, the US Supreme Court defined ‘‘undue burden’’ to mean that employers do not have to incur more than a de minimis cost in accommodating religious beliefs. Furthermore, after the Supreme Court’s decision in Hardison, it is clear that an employer does not have to take steps inconsistent with an otherwise valid collective bargaining agreement and does not have to impose an undesirable work shift on other employees to accommodate a religious belief. There have been several serious bipartisan attempts in recent years to overrule this decision by statute, neither of which resulted in a change in the law. The proposed legislation would be called the ‘‘Workplace Religious Freedom Act,’’ and its proponents hope to strengthen Title VII’s religious accommodation provisions by changing the definition of undue burden from ‘‘more than a de minimis cost’’ to ‘‘an accommodation requiring significant difficulty or expense.’’ According to these proponents, the religious accommodation provisions would thus mirror the Americans With Disabilities Act, as they believe it was originally intended. The factors to be considered in the undue burden analysis would include cost in relation to the employer’s size and operating cost, the number of individuals requiring a particular accommodation, and the degree to which an employer’s multiple facilities would make the accommodation more difficult or expensive. If passed, this law would significantly change an employer’s burden to accommodate religious beliefs.

SPECIAL CONSIDERATIONS FOR DRESS AND APPEARANCE POLICIES As noted above, the definition of religion includes observance and practice. Therefore, religious beliefs that dictate certain dress or grooming practices may run afoul of employer policies regulating such conduct, thereby requiring the employer to consider the existence of reasonable accommodation. The availability

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of a reasonable accommodation often turns on the reason for the policy. Policies based on safety Policies that are reasonably aimed at maintaining safe conditions in the workplace are most likely to withstand a request for modification. Such policies are most often seen in cases involving law enforcement. Thus, prison guards who claimed their religion required them to wear dreadlocks (Booth v Maryland ) or ponytails (Blanken v Ohio Department of Rehabilitation Correction) have been denied accommodation for reasons related to maintaining safety in the prison. Similarly, female employees who claimed their religion forbid them from wearing pants were denied accommodation where the companymandated riot gear could not be worn with skirts (Seabrook v New York City). Policies based on safety are also recognized in other fields. For example, in EEOC v OakRite Manufacturing Corp, the court upheld the employer’s pants-only policy for safety reasons. Oak-Rite required its employees to wear long pants in its metal factory. The plaintiff applied for a position as a press operator and was not hired because she said she could not comply with the company’s pants-only policy. The EEOC, on behalf of the real party in interest, claimed that Oak-Rite discriminated against the plaintiff on the basis of her religion by failing to accommodate her religious belief by allowing her to wear a long skirt to work in the factory. The EEOC suggested an accommodation of allowing her to wear a reasonably close-fitting denim skirt, which was rejected by the court because it imposed an undue hardship on the employer by requiring it to risk employee safety. However, employers whose policies stem from safety concerns generally cannot rest on that conclusion alone. There may be a way to accommodate an employee’s beliefs without compromising safety. Thus, in one New York case, a Sikh employee, whose religious beliefs required him to wear a head scarf, refused to wear the company-mandated hard hat. The court found that the employer had satisfied its duty to accommodate the employee by allowing him to wear the hard hat over his head scarf and

that the employee had unreasonably failed to cooperate with the employer by refusing to do so (Kalsi v New York City Transit Authority). At times, there may be no way to accommodate an employee’s religious beliefs in a safetysensitive position. In that case, an employer should consider transferring the employee to other positions. In one 9th Circuit case, the court found that the employer had offered a reasonable accommodation to a Sikh employee whose religious beliefs proscribed the cutting or shaving of any body hair. In that case, the gas-tight face seal attached to the required respirator could not properly be worn with facial hair. The court found the employer had met its obligation of reasonable accommodation by offering 4 different positions that did not require respirators and promising to return the employee to his original position in the event that a respirator were developed that could be safely worn with a beard. Notably, the court found that retaining the employee in his position and restructuring his duties would cause an undue burden because it would force his coworkers to perform his share of potentially hazardous work (Bhatia v Chevron USA, Inc). Policies based on the maintenance of order and decorum Another important business justification for maintaining strict dress and appearance policies is the maintenance of proper business decorum. Flashy or offensive clothing or appearance not only distracts coworkers and hinders productivity but also can actually cause disruption or contribute to violence in the workplace. Moreover, maintaining and enforcing a strict dress and appearance policy may be a key factor in avoiding claims of unlawful harassment and discrimination. In one case, the employee claimed that her religious belief required her to wear an antiabortion button. The button included a graphic, colored photograph of a fetus, which offended her coworkers. Upon receiving numerous complaints from coworkers and experiencing a significant disruption in productivity, the employer was forced to disallow the continued wearing of the button. The employer proposed several alternatives, including permitting the employee (1) to wear

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Challenges of Dress Codes and Appearance Policies the button only in her work cubicle and leaving it there when she moved around the office, (2) to cover the button while at work, or (3) to wear a different button with the same message but without the photograph. The court found that the first and third options were not reasonable because they did not accommodate the employee’s religious vow to wear that particular button at all times. However, the court found that the second option was reasonable. The court also held that the employee’s request that the employer instruct her coworkers to ignore the button, to separate her workstation from the other workers, or to transfer her to another division would cause the employer undue burden (Wilson v US West Communications). In another recent case, a Ku Klux Klan member wore a tattoo on his forearm depicting a burning cross and an individual in a white robe. Upon receiving various complaints from African American coworkers, the employer ordered the employee to cover the tattoo, as it was offensive and could contribute to a hostile work environment. The court found that this was a reasonable accommodation, noting that the employer’s decision to allow the employee to continue working with the tattoo covered was all that Title VII required (Swartzentruber v Gunite Corp). It should be noted that the court found that the employee had never claimed that the tattoo was religious in nature or that his religious beliefs required him to display the tattoo at work. Thus, in that case, religious accommodation may not have been required at all. On the other hand, that does not mean that a member of the Ku Klux Klan is automatically not protected by the religious discrimination provisions of Title VII. Instead, any sincerely held religious belief is protected. Policies based on company image Another legitimate business reason for a dress and appearance policy may be promoting a certain company image. However, because this justification may not be considered as important as, for example, a safety-related reason, an employer may have a slightly increased burden of reasonable accommodation. In this context, in particular,

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it may pay off to use a little creativity. For example, to maintain a uniform customer image, Domino’s Pizza accommodated one Sikh employee by creating an acceptable headscarf to coordinate with its uniform. Note that it is important to work closely with the affected employee in these circumstances, as the accommodation will not be considered reasonable unless it addresses every aspect of the belief at issue. On the other hand, one court found that a restaurateur employer legitimately forbid its employees from wearing facial hair and agreed that permitting a Sikh employee to wear a beard in front of customers presented an undue burden because it would diminish public confidence in the cleanliness of the employers’ facility (EEOC v Sambo’s of Georgia, Inc). More recently, in Cloutier v Costco Wholesale Corp, the First Circuit Court of Appeals granted summary judgment to Costco with regard to whether granting an exception to its dress policy would constitute an undue hardship for the employer. The plaintiff in that case, who had numerous facial piercings, including eyebrow piercings, and belonged to the Church of Body Modification, filed suit against Costco, claiming that its failure to accommodate her religion violated Title VII. The First Circuit found that Costco’s determination that facial piercings, other than earrings, took away from the ‘‘neat, clean and profession image’’ it aimed to achieve was within its discretion and noted that the way an employee looks reflects on his or her employer. The First Circuit considered the public’s potentially negative view of the company’s image to be sufficient to constitute an undue hardship (Cloutier v Costco Wholesale Corp). Policies based on the special needs of law enforcement In addition to the safety concerns addressed above, employers involved in law enforcement may have additional reasons for strict dress and appearance policies. This is especially so where the law enforcement officer is a government agent or employee. For example, in one case, the court upheld the employer’s requirement that a police officer remove a pin in the shape of a cross because the employer had a legitimate

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interest in avoiding the appearance of religious establishment (Daniels v City of Arlington, Texas). There may be other authoritative or government positions that require similar constraints. In 2005, a Connecticut district court granted summary judgment to the City of Hartford against 5 police officers who, on constitutional grounds, were challenging the police chief’s order for them to cover visible ‘‘spider web’’ tattoos. Apparently, these tattoos indicated racist ideologies and it was believed that, in some places, an individual ‘‘earned’’ such tattoos by killing a minority. The police officers maintained that the tattoos were for appearance only and denied any ‘‘free speech’’ implications. Therefore, the court specifically held that the police chief’s order to cover the tattoos did not violate the officers’ constitutional

rights and entered judgment in favor of the City (Inturri v City of Hartford ). However, in cases where the law enforcement officer is not a government employee, such as a private security guard, religious establishment issues probably do not exist. After all, the First Amendment to the US Constitution, which prohibits the establishment of religion, applies only to the government. Thus, in one case, an employer was unable to identify a reason why allowing a private security guard to wear a pin identifying his religion constituted an undue burden, and thus, it was forced to allow the pin to be worn (Karriem v Oliver T. Carr Co). Part II of ‘‘Dress Codes and Appearance Policies: Challenges Under Federal Legislation’’ will follow in the next issue of The Health Care Manager (Issue 33:1).

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Dress codes and appearance policies: challenges under federal legislation, part 1: title VII of the civil rights act and religion.

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