June 13, 2014

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 34: Religious Dress And Appearance Requires Courts To Strike A Delicate Balance Between Religious Freedom And Business Needs

A recent survey by the Pew Research Center reports that 58% of Americans say that religion is very important in their lives and 76% of Americans say that prayer is an important part of their daily lives.  The survey also shows that an increasing number of Americans adhere to religions, like Islam, Hinduism, Buddhism and Mormonism, which were not nearly as prevalent 20 years ago.  To be sure, the increase in diversity of religions and the large number of Americans that closely observe religious practices has led to increased challenges for American employers, especially when those practices conflict with workplace requirements.

That conflict presents itself in all sorts of different ways.  Can firefighters be required to remove dreadlocks for safety reasons?  What if it is a truck driver for an overnight delivery company?  Can fighter pilots refuse to remove yamaicas because they interfere with piloting?  Can a retail store require salespersons to remove a religious headdress because of a belief that it negatively impacts sales?  Can a hospital require an employee to get a flu vaccine over his religious objection to using a vaccine that contains animal products?  Is veganism a religious practice?

When Title VII was enacted, religious discrimination was surely a controversial aspect of the law, but the fact was that a person’s freedom to practice their religion freely was an issue that had already been litigated in many other contexts.  After all, the First Amendment to the U.S. Constitution prohibits Congress from enacting any law that establishes a religion or prohibits the free exercise of religion.

But those issues appear in different ways with private sector employers.  So, how do the courts strike the right balance in that context.  Generally, there are three questions the courts consider: (1) does the employee have a bona fide religious belief that actually conflicts with an employment requirement; (2) would the employer be able to accommodate that belief without incurring an undue hardship; and (3) are there any reasonable accommodations available.

Take, for instance, firefighters who have dreadlocks.  Assuming their religious belief is genuine and assuming the fire department has a policy prohibiting dreadlocks, the answer to the first question is that there is an actual conflict between the religious practice  and the policy.  So, the question becomes whether the employer can allow the firefighter to wear dreadlocks without harming himself or his co-workers, a question that the courts have generally answered no.  But, by the same token, a San Francisco federal court also found that a retail store could not prohibit a sales employee from wearing a hijab, a Muslim headdress worn by women, based on an unsubstantiated belief that it would negatively affect sales.

These issues frequently require delicate balancing and they are especially dependent on the specific facts of every case.  With an increasingly diverse American workforce and a workforce that is constantly changing due to technical advances, these issues will present new challenges for years to come.