Employers these days have a lot of obligations. They have bills to pay, workers to manage, customers to satisfy, and laws to follow. But what happens when two obligations conflict? What is an employer to do? When in doubt, follow the law–right? But one Minnesota employer recently discovered things aren’t that simple, especially when “the law” may be telling the employer to do two different things.
A company in southeast Minnesota had approximately 30 Somali workers walk off the job on Monday morning to protest the company’s new dress code policy. The policy, which prohibits women from wearing skirts that hang below the knee, was adopted in response to an earlier incident involving a woman’s long dress getting caught in a boot washer machine. The protesting employees claim that the new policy conflicts with their religious beliefs, which require women to wear clothing that does not reveal their bodies. The employer says that long skirts are a safety hazard and that employees have the option of wearing slacks or leggings under shorter skirts. Protesters say that they should be responsible for their own safety.
Under Title VII, employers must reasonably accommodate employees’ religious beliefs, observances, and practices, unless doing so creates an “undue burden.” According to the EEOC Compliance Manual,such a reasonable accommodation may include altering workplace policies, such as dressing and grooming codes. The undue burden exception allows an employer to avoid accommodations that jeopardize workplace safety; however, the employer must demonstrate that a real safety risk is present. Employers must also, of course, comply with OSHA, which requires a workplace free of recognized hazards. Employers may also have a common-law duty not to be negligent in the way that the workplace is maintained and run. So what is an employer to do? An employer must balance respect for workers’ religious beliefs with the need to keep the workplace safe. The first thing an employer must do is ascertain if there is a real safety risk created by accommodation of the religious practice at issue. If not, and if no other undue-burden factors exist (such as extraordinary expense or detriment to other employees), the employer is likely required to accommodate the religious practice.
Each situation is different and must be evaluated based on all the facts and circumstances involved. In this instance, a prior workplace accident provided evidence that long skirts could create a safety risk. If a safety risk is present, and there is a way to minimize or eliminate it while still respecting employees’ religious beliefs, the employer should attempt to do so. This might include giving employees the option of wearing pants or leggings. It might also include transferring an employee to a position that doesn’t involve a safety risk, or eliminating the safety risk in some other way.
If there is no way to make both obligations work, the employer should likely enforce the safety policy, although that is a decision best made in consultation with legal counsel.
In any event, clear and respectful communication can be helpful. Good communication may help employees have a better understanding of the legal constraints on the employer, and of the employer’s safety and liability concerns. It may also allow the employer an opportunity to express its understanding of and respect for the employees’ religious practices.