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Here at Miletti Law®, we are the authoritative force in Employment and Labor Law. Therefore, we are committed to the continued updating of our series on employment & labor law with fresh, verifiable, and credible content. In that spirit, this blog is Part IX of our series on “Religious Accommodation Requirements.” Since Part I of this series, we have been talking about the employer’s obligation to provide the employee or applicant with reasonable accommodation. However, Title VII does not require the employer to provide accommodation that imposes an undue hardship on the employer’s business operations. The concept of undue hardship was defined and explored in Part VII of this series, which is accessible at https://milettilaw.com/blog/f/what-is-undue-hardship-in-religious-accommodation. Accordingly, without changing lanes, this blog covers “Uniform and Dress Code Policies,” which is another type of undue hardship that may be faced by an employer.

Uniform and Dress Code Policies

Employers are required to provide specific and credible evidence of the hardship or expense caused by the exemption to demonstrate an undue hardship imposed by exemptions to policies on uniform and dress code. This means that an employer should be able to defeat an employee’s claims of denied reasonable accommodation if the employer presents objective evidence such as direct operational burdens and monetary costs. However, undue hardship determination may not usually be supported by unproven assumptions of hypothetical hardships. For instance, an employer might never be able to defeat an employee’s claims of denied accommodation if the employer refuses to accommodate such an employee based on the argument that other employees would be encouraged to request similar accommodation if a single exemption is provided to one employee, in what is popularly termed as a “slippery slope” argument. Examples of cases that followed such an argument include:

  • United States v. New York City Transit Authority, 2010 U.S. Dist. LEXIS 102704, at *61–63 (E.D.N.Y. Sept. 24, 2010). In this case, a transit agency was unable to convince the court that the right to present its chosen image to the public comprised an undue hardship and a reason why the agency denied Muslim and Sikh employees the exemption to wear religious headwear that did not have the agency’s logo.
  • EEOC v. Red Robin Gourmet Burgers, Inc., 2005 U.S. Dist. LEXIS 36219, at *18–20 (W.D. Wash. Aug. 29, 2005). The court was unconvinced by an employer’s “slippery slope” argument and expressed doubt about the employer’s unsubstantiated hardship claims in this case where a server (the employee) working for the employer (a restaurant chain) refused to use long sleeves to cover religious tattoos.
  • EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006, 1015-16 (D. Ariz. 2006). In this case, the court was found that the employer (rental car agency) could not substantiate anything other than a speculative and hypothetical burden that would be imposed by accommodation in this case where the employer denied to provide a Muslim employee with an exemption to the uniform policy and allow the employee to work at the rental counter with a head covering on.

Nonetheless, as long as employers can substantiate their claims of undue hardships using evidence such as legitimate safety concerns or monetary costs, courts are most likely to uphold employers’ decisions for denying exemptions to uniform and dress code policies in the employer’s workplaces. The following are cases where courts upheld employer decisions:

  • EEOC v. Geo Group., Inc., 616 F.3d 265, 273–75 (3d Cir. 2010). The Third Circuit ruled that the employees’ religious beliefs were outweighed by the employer’s safety concerns in this case where the employer (a private correctional facility) denied Muslim employees the exemption to its dress code policy and refused to allow these employees to wear a khimar (a veil or head covering) because the employer had concerns that such a khimar could be used to as a strangulation device in a conflict with an inmate or smuggle contraband into the prison.
  • EEOC v. Oak-Rite Mfg. Corp., 2001 U.S. Dist. LEXIS 15621, at *35– 36 (S.D. Ind. Aug. 27, 2001). The court found that the employer’s decision to deny a female employee, whose religious beliefs prohibited the wearing of pants, an exemption to its “pants only” policy was valid and substantiated because the dress code policy was designed to minimize the risk of loose clothing getting caught in machinery or parts on the production floor and lower the exposure of the skin to sharp metal parts.

In Part X of this series, we will hammer on “Personal Appearance and Grooming Policies,” including Hairstyle Discrimination,” which comprises another example of an undue hardship that may be imposed by a religious accommodation.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.