Religious Discrimination — Beards; Quirky Question # 88

Quirky Question # 88:

We have various policies at our company relating to the appearance of our employees.  One of those policies is that our male employees must be clean shaven.  Several of our employees are protesting that policy on the ground that it constitutes religious discrimination.  Come again?  Is this legit?  Do we have to accommodate the requests of employees that undermine our policies with respect to the appearance of our employees?

Dorsey’s Analysis:

You inquired whether you have to accommodate the requests of your employees who object your company’s policy that your male employees must be clean shaven.  Although I would need a few additional facts to provide you a definitive answer, the simple response is that your company most likely does have to accommodate your employees’ desires to have beards.  This is true even if allowing these employees to have beards conflicts with your policies regarding the appearance of your employees.

As you suggest in your question, your employees contend that your policies constitute religious discrimination.  The first issue, therefore, is whether these employees have a “sincere religious belief that conflicts with a job requirement.”  Occasionally, the “religious belief” issue is an analytical stretch for the employee.  For example, one of the first Blog analyses I posted involved a female employee with various facial piercings that conflicted with her employer’s appearance policies.  She attempted to justify her facial piercings on religious grounds, claiming she belonged to the “Church of Body Modification.”  The court did not buy it.

In most instances, however, employees raising claims of religious discrimination do have a sincere belief that conflicts with a specific job requirement.  Since you have not described the religious beliefs of the employees involved, I will assume that their desires to have beards is actually linked to their religion.

The next question you will need to explore is whether your company can accommodate the employees’ religious beliefs without causing an “undue hardship” with regard to the conduct of your business.  See 42 U.S.C. § 2000e(j).  As you likely know, the concept of “reasonable accommodation” developed in the area of disability discrimination.  Typically, with regard to disability discrimination, companies examine the economic impact of the requested accommodation on the business and other corollary issues.  These cases are highly individualized, and like other areas of discrimination, depend on an analysis of the totality of the circumstances.  How expensive is the accommodation?  How many employees work at the facility where the accommodation is sought?  What are the company’s revenues?  What are the revenues of the facility where the employee is seeking the accommodation?  Are there non-monetary considerations that bear upon the accommodation (e.g., would the requested accommodation require the company to modify its work schedule; how would other employees be affected; could the employee perform the essential functions of the job with the accommodation; are any safety issues implicated; etc.)?

These kinds of inquiries also come into play when a religious accommodation is sought.  Would the accommodation cause an undue hardship for your company?  For example, are there any safety issues that would be implicated by allowing employees to have beards?  A recent case from the United States Court of Appeals for the D.C. Circuit, Potter v. District of Columbia, No. 07-7164 (March 6, 2009), involved just this context.  In Potter, a group of D.C. firemen and emergency medical services (EMS) workers challenged on religious grounds the D.C. fire department’s proscriptions against beards.  The principal factual issue of the case was whether beards impeded or interfered with the use of various different types of breathing apparatus the firemen needed to perform their jobs.  A central question was whether a leak in the face mask, caused by a beard, could endanger the bearded fireman, his fellow firemen, and/or the citizens the firemen are trying to assist.

After both the City and the firemen filed cross-motions for summary judgment, the District Court granted summary judgment for the firemen and EMS workers.  The trial court concluded that the City’s “clean-shaven policy” was not sufficiently narrowly tailored to satisfy the requirements of the statute on which the firefighters had grounded their claim, the Religious Freedom Restoration Act.  That statute mandates that the government demonstrate that a policy that burdens religious freedom do so in the least restrictive manner to advance a compelling interest.

The U.S. Court of appeals affirmed the summary judgment decision in favor of the firemen.  It appeared, however, that this decision was based, at least in part, on the flawed approach to the litigation taken by the City.  Indeed, in a concurring opinion, one of the federal appellate judges commented that the City’s “muddled litigation strategy rendered summary judgment for the plaintiffs a legitimate outcome.”  The concurring judge went on to characterize the situation as a “semi-natural experiment, in which the District of Columbia will fight calamities with some of its firefighters bearded, while other firefighting entities adhere to OSHA’s rule or its equivalent.”

Nevertheless, as the Potter case illustrates, it is important for employers, whether governmental or private employers, to evaluate whether the policies adopted that infringe on religious freedoms are the least restrictive policies that could be adopted in light of the compelling interest the employer seeks to advance.

Moreover, as some cases illustrate, there are times when the issues of disability discrimination and religious discrimination may intersect.  If, for example, the employer has accommodated an employee for disability reasons, that accommodation may also affect whether the same accommodation must be offered to accommodate religious beliefs.  By way of illustration, in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), the appellate court held that the government cannot discriminate between conduct that is secularly motivated and religiously motivated.  The Newark police department prohibited police officers from growing beards but granted medical exceptions for beards as required by the ADA.  Two Muslim police officers filed suit, contending that their First Amendment rights were infringed by the no-beards policy.  The Third Circuit agreed, holding that the police department must create a religious exemption to its no beards policy to parallel its secular exemption, unless the department could make a substantial showing as to the hypothetical negative effects of a religious exemption.

A final observation with respect to the “undue hardship” concept.  As some courts have observed, establishing an “undue hardship” in the context of a religious accommodation request is “not a difficult threshold to pass.”  When assessing claims of whether an undue hardship is likely to be caused by a religious accommodation, courts seem more willing than in the parallel disability accommodation context to look beyond mere economic considerations.

In sum, the first issue is whether the accommodation sought relates to a sincerely held religious belief. The next issue is what important interest the policy is designed to advance. Assuming that there are both legitimate religious beliefs and legitimate corporate interests at stake (e.g., safety considerations), the courts have to evaluate whether the policies are the least restrictive policies designed to advance the corporate interest. Lastly, the courts evaluate whether the requested accommodation would cause the employer an undue hardship. Even if sincere religious beliefs are at issue, an accommodation that causes the employer an undue hardship is likely to be rejected. But, absent some serious safety issues (e.g., your employees work with air-borne pathogens and need tight fitting masks), it may be difficult to advance a persuasive argument that accommodating someone who wants to have a beard for religious reasons would cause your company an undue hardship.

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