Nose Rings, Facial Jewelry and Religion, Quirky Question # 92

Quirky Question # 92:

We have an employee who wears a nose ring.  Because she interacts regularly with the public, and because we have a “no facial jewelry” policy, we asked her to remove the nose ring.  She claims, however, that she wears the nose ring for “religious” reasons.  We’ve asked her to inform us of the religion that requires nose rings but she has not been forthcoming on that issue.  Our inclination is to terminate her employment if she does not modify her behavior and remove the nose ring.

I thought we had the right to control our company’s public image.  Can’t we impose certain appearance standards upon our employees?  What’s your advice?

Dorsey’s Analysis:

One of the early questions I addressed in this Blog involved a similar issue (see Question # 17 – “Appearance at Work”.)  That Blog analysis touched on a decision from the First Circuit (Cloutier vs. Costco Wholesale Corp., 390 F.3d 126 (1st Cir.2004)), in which Costco prevailed on summary judgment when confronting an employee’s request to display facial jewelry (an eyebrow piercing).  The employee, who claimed that she had the eyebrow piercing for religious reasons, lost her claim.  Whether this reflected some underlying skepticism of the plaintiff’s religious beliefs – she asserted that she was a member of the “Church of Body Modification” – or whether the district and appellate courts were concerned about Costco’s ability to control its public image, or some mixture of the two inter-related issues is unclear.  That was then, . . ..

A recent decision out of the Middle District of Florida, EEOC vs. Papin Enterprises, Inc. et al., No 6:07-cv-1548-Orl-28GJK (April 7, 2009), reached the opposite conclusion, on facts similar to those presented in your question.  In Papin, an employee of a Subway franchisee sued because of the defendants’ unwillingness to allow her to wear her nose-ring.  Like the plaintiff in the Costco case, the Subway employee claimed religious reasons for wearing her facial jewelry.  Nowhere in the 19-page judicial opinion, however, does the Court identify the religion with which plaintiff identified.  This omission perhaps reflects the fact that, after initially questioning the sincerity of the employee’s beliefs, both the defendants conceded, at least for summary judgment purposes, that the plaintiff’s desire to wear the nose-ring was based upon a “sincerely held” or “bona-fide” religious belief.  Once that legal concession was made, the focus of the case became whether the Subway franchisee could accommodate the employee’s religious beliefs without experiencing an “undue hardship.”  Here, the defendant’s analytical approach was perplexing.

Rather than focusing on the company’s need to control its public image, the defendant franchisee instead attempted to ground its unwillingness to accommodate the employee, and its ultimate termination of her employment when she refused to remove the nose-ring, on food safety standards.  Unfortunately for the defendants, this rationale could not be reconciled with the accommodations offered.  Although there was some factual dispute between the plaintiff and defendants, the defendant franchisee (the franchisor also was a named defendant) contended that it offered the plaintiff the option of covering up her nose-ring with a band-aid.  She refused.  More fundamentally, it is unclear (at best) how covering a nose-ring with a band-aid would satisfactorily resolve food safety issues.  The second accommodation proposed by the franchisee was even sillier.

Apparently concerned that it was out of compliance with the requirements of the franchisor regarding employee appearance and attire, and recognizing that the franchisor made regular, scheduled, once-monthly visits to the franchisee’s location, the franchisee proposed that the employee simply not show up for work on the one day each month when the franchisor’s visit was scheduled.  As the Court noted, “the Papin entities cannot sincerely argue that they had a strict food safety requirement barring nose rings while at the same time claiming that one of the proposed reasonable accommodations was to allow [the employee] to wear the nose ring at all times while she was working at the restaurant but to permit her to leave when the compliance auditor came by.”  Clearly, the proposed accommodation was completely inconsistent with the underlying rationale (food safety concerns) for why the facial jewelry was impermissible.

Interestingly, the franchisor’s efforts to evaluate the sincerity of the employee’s religious beliefs also proved problematic.  The court observed that the franchisor was willing to waive the prohibition on the nose-ring if the employee could demonstrate that her wearing of this facial jewelry was legitimately linked to a sincerely held religious belief.  As the Court observed, if the company was willing to waive the facial jewelry prohibition, it could not have been based on a “food safety requirement.”  Thus, the company’s willingness even to engage on the first issue in a religious discrimination context (whether the belief was bona fide) proved its undoing when trying to advance its undue hardship justification (food safety requirements).

Applying the lessons of the Papin case to your question suggests some practical points.  First, consider carefully the reasons for why your company prohibits certain facial jewelry.  Your company does have the right to protect its public image.  Especially since your employee interacts regularly with the public, your company’s desire to proactively regulate your employee’s appearance takes on added significance.  Second, as you consider whether you can offer your employee any reasonable accommodation of her supposed religious beliefs, ensure that the accommodation considered does not undermine the rationale you have advanced for the undue hardship argument.  Third, don’t be too quick to dispose of the first line of defense – your assessment of whether the employee’s religious beliefs are sincerely held.  But, when you explore this issue with your employee, make clear that even if she articulates a sincerely held religious belief, you may not be able to accommodate her.  Fourth, give some thought to developing the “slippery slope” argument.  If one nose-ring is acceptable, how about two or three?  Would your attitude be different about tongue piercings?  What about multiple facial piercings of various kinds?  How would your company react if applicants with facial tattoos sought employment?

With respect to all of these issues, I encourage you to develop reasonable policies that are legitimately linked to your business interests.  It is also important for your company to then enforce these policies fairly and uniformly.  Taking this approach will increase the likelihood that you will prevail in litigation challenging your company’s prohibition of facial jewelry on religious grounds.

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