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December 06, 2011
When Religious Practices and Beliefs Meet the Workplace

The more diverse the U.S. population becomes, the more often employers confront, among applicants and employees, a wide variety of religious faiths. As the level of diversity rises, so does the risk of being sued for religious discrimination. Michael S. Mitchell, a partner in Fisher & Phillips’ New Orleans office, reports that bias claims are especially common among retail and hospitality employers.

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But I have to wear a headscarf; it’s part of my religion. Because retail and hospitality employees are constantly on view to customers, many employers in those sectors have strict dress codes. And head coverings can strike them as the wrong look. But when interviewing someone whose religion requires a certain mode of dress, it’s illegal to refuse to hire the person unless he or she conforms strictly to the dress code or uniform. His or her religious attire is as “immutable” a characteristic as gender, race, age, or ethnicity.

Three women have sued Abercrombie & Fitch, asserting they were not hired or were later fired for wearing head coverings (their suits are still pending, and we don’t know the outcomes). Mitchell applauds Ikea in the U.K. and Domino’s Pizza in the U.S. for what he sees as very reasonable solutions: Ikea provides its female Muslim sales associates with headscarves in the corporate colors, navy blue and yellow, with an Ikea logo sewn on the back. And Domino’s allows employees to wear the signature Domino’s baseball cap over a red and blue scarf. In similar ways, employers can maintain the “special look” they want and still accommodate employees’ religious needs.

“Very difficult and touchy.” This is how Mitchell describes situations in which one employee’s religious faith contradicts the rights of one or more other employees. The classic example, of course, is one where an employee’s sincerely held belief that homosexuality is a sin and must be stamped out is displayed or expressed and offends other employees, who may be either gay or straight. Most of all, a gay employee could feel belittled and upset; if that happened, he or she might have a winnable charge of sexual harassment.

Here, Mitchell advises, the law against religious discrimination is very clear: It forces all employers and employees to be reasonable. And if someone’s expression of faith impinges on other employees’ productivity, privacy, or feelings, then that expression is not reasonable. Employers can require that every worker behave in a way that is discrete, low-key, and respectful, Mitchell says, and can include that in their code of conduct. By the same token, some faiths require their followers to try to convert others to their religion at every available opportunity.

But if one employee dominates those around him or her—and takes up their work time—by talking too much, that’s not fair, or reasonable. In fact, says Mitchell, that’s true regardless of what topic is the focus of any employee’s overtalking and dominance, be it sports, politics, or something else.

So many different faiths out there. Mitchell points out that many religions beyond Islam require distinctive garb or appearance. They include Sikhs, Rastafarians, many Jewish groups, and some Pentecostal Christian groups. So watch out, he says, for even longstanding company policies that may lead to a knee-jerk “no” from an interviewer or supervisor. Mitchell asserts that in many if not most cases, employers have the right to set the tone, style, and look of employees. In fact, employers usually win dress code lawsuits.

So for customer-contact positions, you can set requirements for clothes, makeup, jewelry, hairstyles, and some other choices, as long as employees have the ability to comply with the style—or cover offending tattoos or piercings—without undue expense. Whenever the reason for a particular look or style is religious, you’re well-advised to look for a reasonable accommodation, because employees and applicants can’t change religions at will. However, we’d note that in a few very risky environments, some safety standards may be necessary—for example a workplace in which a headscarf might get caught in machinery or be grabbed by an inmate.

What if an employee refuses to do a particular work task for religious reasons? Again, the classic example: A pharmacist believes that some or all birth control drugs are sinful. Mitchell’s advice: You can tell the objector that when he or she is on duty with another pharmacist, it’s OK to ask the other worker to fill an objectionable prescription. But if the objector is on duty alone, all prescriptions must be filled on request.

Give them room. Both faith-based and nonreligious organizations can allow, and provide space for, many kinds of religious activities, such as Bible study, prayer groups, and the like. Employees can be required to use break or meal time to attend. But there are two keys, Mitchell stresses: First, if you allow some kinds of meetings, you shouldn’t pick and choose which ones you will approve. Be fair. Second, all such activities must be absolutely voluntary, even in faith-based organizations. And, religious organizations shouldn’t refuse to hire anyone who has a different faith—or none at all.


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