Employment Sections

Employers Challenged by Religious Discrimination, Appearance Issues

Crosses to Bear

By Karina L. Schrengohst, Esq.

Karina L. Schrengohst

Karina L. Schrengohst

You have an employee, Jack, who says he belongs to the Church of the Flying Spaghetti Monster. He practices the religion of ‘FSMism’ and, pursuant to this practice, he requests, as religious accommodations, an exception to the dress code and a schedule change.

Specifically, he wants to dress like a pirate and wear a ‘colander of goodness’ on his head.  In addition, he wants every Friday off because every Friday is a religious holiday for ‘Pastafarians.’  Jack has been preaching to his co-workers that they should join his church because Pastafarian heaven has a stripper factory and a beer volcano.

What would you do?

The Nebraska State Penitentiary was faced with precisely this request from an inmate. When prison officials refused to accommodate the inmate’s purported religious beliefs, he filed a lawsuit. Because the plaintiff in this case was an inmate and not an employee, this case does not involve reasonable accommodations under Title VII of the Civil Rights Act of 1964. But the case is an interesting illustration of how requests for religious accommodations can arise.

Title VII and Massachusetts state law prohibit discrimination based on religion in the workplace. In addition, state and federal law require employers to provide reasonable accommodations for sincerely held religious beliefs, unless doing so would create an undue hardship. Unlike disability discrimination law’s high burden, in the context of religious discrimination law, an accommodation constitutes an undue hardship if it would impose more than a de minimis cost on the employer. A reasonable accommodation is simply an adjustment to the work environment, such as an exception to dress code or schedule requirements, that will allow the employee to practice his or her religion.

But what exactly is religion for purposes of employment discrimination law? Defining ‘religion’ is difficult, as we have a growing, religiously diverse population. Title VII defines religion as including all aspects of religious belief, observance, and practice. The Equal Employment Opportunity Commission defines religion to include moral and ethical beliefs that are sincerely held with the strength of traditional religious views.

Religious beliefs typically involve deep and imponderable ideas, including existential matters, such as humankind’s sense of being; teleological matters, such as humankind’s purpose in life; and cosmological matters, such as humankind’s place in the universe. Religious beliefs are typically comprehensive and broad in scope.

Religion typically has some formal or external signs, including, for example, services, ceremonies, and rituals; writings, structure, or organization; holidays; clothing; and propagation. However, beliefs grounded solely in political, economic, or social ideology are not religious.

For example, courts have found that the Ku Klux Klan is not a religion protected by Title VII, but instead is a political and social organization. In addition, personal preferences are not religious. For instance, a district court in Florida found an individual’s purported ‘personal religious creed’ that eating Kozy Kitten cat food was contributing significantly to his state of well-being and therefore his overall work performance by increasing his energy to be a mere personal preference and not a religion protected by Title VII.

With this in mind, is FSMism a religion? The Nebraska federal court came to the conclusion that FSMism is not a religion. The court found that FSMism is a satire, intended to advance an argument about science, the evolution of life, and the place of religion in public education.  FSMism, which originated as a response to intelligent-design theory, argues that it is just as likely that God set the universe in motion as did a great Flying Spaghetti Monster.

The court, however, was not questioning the validity of the plaintiff’s beliefs. Religious beliefs do not have to be acceptable, logical, consistent, or comprehensible to others. In fact, religious beliefs can be preposterous to others.

Now consider you have an employee, Sally, who refuses a mandatory flu shot. She requests an exemption from the requirement. Sally says that, because she is vegan, it is against her religious beliefs to take the flu shot because it contains animal byproducts. What would do you?

An Ohio hospital was faced with this very request from an employee.  After the hospital denied the request and terminated her employment for refusing the flu shot, this employee filed a lawsuit in an Ohio federal court arguing that she was denied a religious accommodation.

The employer argued that veganism is not a religion, but rather a dietary preference or social philosophy. The employee argued that her practice constitutes a moral and ethical belief, which is sincerely held with the strength of traditional religious views. The employer in this case ended up settling after the court denied its motion to dismiss.

Finally, consider you have an employee, Jill, who comes to work one day with facial piercings. Your dress code prohibits facial piercings. Jill’s supervisor sends her home for violating the company’s dress code. Jill tells her supervisor that she belongs to the Church of Body Modification. She requests a blanket exception to the policy. What would you do?

In our own backyard, Costco was faced with precisely this request. When Costco would not give the employee the requested accommodation, she filed a lawsuit in federal court in Springfield. In this case, the district court left the question of whether the Church of Body Modification is a religion unanswered. Costco argued, and, on appeal, the First Circuit found, that permitting the employee to display her facial piercings was an undue hardship because it would adversely affect Costco’s public image and efforts to present a professional workforce.

What if Jill had come to work with a visible tattoo on her arm? She does not express that her tattoo has any religious significance. She simply considers her tattoo to be an individual expression. What would you do?

Under these circumstances, you can require Jill to cover her tattoo while working, assuming that is consistent with your policies. Generally, private employers can set whatever dress, grooming, and appearance standards that they think are appropriate for their businesses as long as the standards are not discriminatory or based on religion or any other protected categories (sex, race, disability, etc.). The question remains, however — do you want Jill to cover her tattoo?

Some employers are adopting more flexible appearance standards. This is driven, in part, with an eye toward employee retention. There is a generation of workers currently in the workforce who value individual self-expression and who are changing workplace culture related to acceptable appearance. In fact, there is a growing trend across the country at large, with national companies allowing employees to visibly display tattoos.

Whatever the appearance standards you decide are appropriate for your business, whether you have a conservative dress code or you allow employees to dress like pirates with visible tattoos and facial piercings, it is important to remember that policies should be consistently and uniformly applied to all employees, and exceptions to these policies should be considered for religious accommodations on a case-by-case basis.

Karina L. Schrengohst, Esq. specializes exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, boutique, management-side labor and employment law firm, which is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office and the National Assoc. of Minority and Women Owned Law Firms; (413) 586-2288; [email protected]