As we advised in our March issue, employers should take heed of the EEOC’s increased focus on employer accommodations for religious attire. A number of recent decisions invalidating dress code and grooming policies for discriminating against a particular race or religion suggest that employees asked to change their appearance under an employer’s dress policy have also found a safe haven in the courtroom. Employers should be mindful of this trend and take a closer look at their policies.

In a number of cases, such as EEOC v. Red Robin Gourmet Burgers, Inc. and EEOC v. Papin Enterprises, Inc., courts have found in favor of employees who have refused to cover their tattoos or remove nose rings due to their religious beliefs. Courts have largely focused on how costly the accommodation would be to the employer. If accommodating the employees would not financially burden the employer, such as allowing an employee to wear a skirt rather than slacks, the courts tend to side with the employee. However, if the accommodation came at a significant cost to the employer, such as a safety hazard caused by a piece of religious garb, the courts are more likely to find in favor of the employer. When faced with an employee who refuses to conform to a standardized dress policy, it is important to consult counsel in order to determine whether or not the employer must make an accommodation under the circumstances.

Courts have also turned a skeptical eye on policies which may have been written as racially neutral but have a disparate impact on a particular race.  In a recent case,Vazquez v. Caesars Paradise Stream Resort, the U.S. District Court for the Middle District of Pennsylvania found in favor of an African American employee who claimed a company’s policy of not allowing employees to wear their hair in a manner which showed their scalp was unfairly applied when the company allowed Caucasian women to wear their hair in braids but forbid African American women to wear their hair in cornrows. Employers must educate their staffs on the proper implementation of appearance policies, remembering that facially neutral policies can still be found in violation of discrimination laws if applied unequally.

It can be difficult for an employer to assess when it must and how to best accommodate an employee’s religious beliefs or whether an internal policy has a disparate impact on employees. An employer faced with such questions or an employee’s refusal to adhere to its dress policy should reach out to Kelley Drye for counseling. We at Kelley Drye also have experience in helping employers develop and implement policies that can help to avoid litigation and prevent liability.