Long Hair and Religion, Quirky Question # 95

Quirky Question # 95:

I read with interest your analyses of beards and facial jewelry in the context of religious discrimination claims.  Maybe I’m beating this topical horse to death, but we’ve encountered a situation where an employee is claiming that his long hair is linked to his religious beliefs.  He refuses to cut his hair despite our clear “grooming policy” set forth in our Employee Handbook.

Do we have to accommodate the employee’s desire to have long hair?  I feel as though our company (and every other employer) is losing control over how our employees look.  Your guidance is appreciated.

Dorsey’s Analysis:

I would need more facts to assess whether your company needs to allow this employee to have long hair as an accommodation of his purported religious beliefs.  As you referenced in your question, I’ve looked at the issue of religious accommodations in the context of various facial piercings, beards and nose rings.  Now, you inquire about long hair.

As I’ve addressed in prior Quirky Questions, there are a variety of related inquiries that need to be considered when an employee presents a request for a religious accommodation of his or her appearance.  But, before you reach this issues, it’s worthwhile to explore some practical questions, some of which may bear on whether you could or should accommodate your employee’s request based on his religious beliefs.

First, how long has this employee worked for you?  Has he always had long hair or is his desire to wear his hair long a new request?  If the latter, has he adopted new religious beliefs?  Is there some reason why past compliance with your company’s grooming policy did not offend his religious sensibilities while current compliance is religiously problematic?

Second, do you enforce your grooming policy uniformly?  If your employee will be able to point to other individuals working at your company who have long hair and perform similar jobs, it may be difficult for your company to advance a compelling argument that allowing this employee’s long hair would constitute an undue hardship.  (Note that both with respect to religious and disability discrimination, if you have allowed other employees to behave in a way sought by the individual seeking the accommodation, your undue hardship argument will be an uphill climb.)

Third, what job does your employee perform?  What is the reason your company prohibits long hair?  Is your policy linked solely to your company’s desire to control its public image or are there other issues in play?  For example, are there safety considerations, linked perhaps to the machinery or equipment the employee must use?  Are there food safety considerations that are driving your policy?   In these illustrative contexts and many others, what does your company do with respect to the hair styles of your female employees?  Do these employees wear hats, hair nets, or other equipment to keep their long hair out of their way as they work?

Fourth, what are your employee’s religious beliefs?  How do his religious beliefs relate to his long hair?  How did your employee broach this topic with you?  Did he explain his religious beliefs?  Was he willing to discuss them?

Fifth, is anything else of relevance going on with this employee?  For example, was he recently disciplined for performance problems?  Is he on a Performance Improvement Plan?  In short, are his new found religious beliefs (assuming that they are newly discovered) a set up to insulate him from a potential adverse job action?  (Forgive me cynicism.  Given the nature of some of the claims I’ve seen, I’ve grown somewhat skeptical.)

Exploring each of these areas should position you to analyze the fundamental issues pertinent to a request for a religious accommodation.  There are three basic issues that must be explored.  Are the employee’s religious beliefs sincerely held?  In other words, are they bona fide religious beliefs?  Next, can these religious beliefs be accommodated?  Lastly, would accommodating your employee’s requests for the religious accommodation cause your firm any undue hardship?

As I’ve suggested in past analyses, the standard for establishing an “undue hardship” in the context of a request for a religious accommodation appears to be a somewhat easier test for an employer than in the parallel context of proving undue hardship in disability discrimination cases.  Indeed, controlling your company’s image may well be a legitimate consideration for your company, the deviation from which would constitute an undue hardship.  Of course, if this is the underlying justification, you may have to elaborate a bit on why maintaining a certain corporate image is important.  Further, this rationale should be linked to the job responsibilities performed by this employee.  If, for example, the employee had no interaction whatsoever with the public or your customer base, the “public image” argument may be more difficult to justify persuasively.

In short, you need to better understand the facts before you will know whether your company must accommodate your employee’s request and whether your company faces exposure if it fails to do so.

One recent case involving an applicant who claimed his long hair was linked to his religious beliefs highlights a few of the issues implicated in this kind of fact pattern.  In Lord Osunfarian Xodus v. The Wackenhut Corporation, No. 07 C 1431 (N.D. Ill. April 24, 2009), an applicant for a security guard position claimed that he was denied a job because he refused to cut his dreadlocks.  The plaintiff asserted that his religious beliefs – Rastafarian/Hebrew Israelite – prohibited him from cutting his hair.  The Defendant corporation moved for summary judgment, arguing that the plaintiff never even mentioned his religious beliefs during his job interview.  The federal district court didn’t buy it.

The Court’s opinion revealed a bit of frustration with both parties.  The court began its analysis of defendant’s summary judgment motion by observing, “The facts in this case are clearly in dispute.”   The plaintiff claimed that he mentioned his religious “beliefs” in the interview and the defendant denied it.  The judge may as well have said, “Why are you wasting judicial resources with this motion?”

Interestingly, the court noted that while the parties could not agree on precisely what was said about the plaintiff’s religion during the interview, he did state that he could not cut his hair because of his “beliefs.”  The court found that this assertion was sufficient to raise an issue of  religious discrimination.  The judge stated, “The parties do agree that plaintiff did not specifically identify his religion at the interview, but that type of declaration is not required to prove religious discrimination.”  In short, once an applicant or employee introduces a concern that he cannot engage in certain conduct because of his belief system, it will be incumbent upon the employer to explore this issue and find out why.

Finally, the court did rule for the defendant on the argument that plaintiff had failed to mitigate his damages.  Plaintiff argued that he was unable to accept any subsequent employment because his rejection from the security guard position, in an abbreviated interview, exacerbated a previous mental health condition.  (See why I get skeptical at times.)  Fortunately, the court rejected this contention, which, incidentally, was unsupported by any medical testimony.

Dorsey & Whitney

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