The EEOC takes religious accommodation cases very seriously when it comes to "dress code violations," and employers are oftentimes losing on the "undue hardship" defense.
Tatoos: In 2005, the EEOC brought suit against Red Robin Gourmet Burgers. The EEOC alleged in its suit that Red Robin refused to offer Edward Rangel, a server at the restaurant, any accommodation for his Kemetic religion, an ancient Egyptian faith. As part of his practice, Rangel went through a rite of passage where he received religious inscriptions in the form of tattoos. The inscriptions, less than a quarter-inch wide and encircling his wrists, are a verse from an Egyptian scripture and are written in a liturgical Egyptian language. The inscriptions symbolize his dedication and servitude to his creator and Rangel’s beliefs make it a sin to intentionally conceal the religious inscriptions.
Red Robin had a dress code prohibiting employees from having visible tattoos and asked Mr. Rangel to cover his tattoos with wrist bans or bracelets. Red Robin maintained that allowing any exceptions to its dress code policy would undermine its "wholesome image." Mr. Rangel refused, stating that covering his tattoos was a sin. He had multiple conversations with management, explaining his faith and his need for an accommodation in the form of an exception to the policy, but he was terminated for failing to conceal his tattoos.
At summary judgment, Red Robin argued that exempting Mr. Rangel from its dress code policy would create an undue hardship because it had a certain image it wanted to portray to customers. The district court disagreed, stating that allowing the employee to show his tattoos must not be much of a hardship given that Mr. Rangel worked for six months before being asked to cover his tattoos, no customers complained, and the tattoos were small. The case was ultimately settled with Red Robin paying $150,000 and making substantial policy and procedural changes, which the EEOC will monitor through a Consent Decree.
Acting EEOC Regional Attorney Kathryn Olson noted, "We live in a diverse society where individuals have the religious freedom to practice many different belief systems."
Nose Ring: In EEOC v. Pain Enterprises, Inc. [PDF], during a monthly site visit, a field consultant for Subway Development, found one of its Subway franchisees, Papin Enterprises, Inc., out of compliance with its contractual commitments based in part on an employee wearing a nose ring. The franchisee (Mr. Papin) told the employee to remove her nose ring because it was contrary to the no-facial-jewelry policy set forth in the Subway® Employee Handbook, but she refused, explaining that her wearing of the nose ring was religious in nature. Mr. Papin requested a waiver of the no-facial-jewelry policy from the franchisor. The franchisor requested documentation supporting the religious nature of the nose ring, so the employee provided a note from her mother and herself regarding her religion. The employee was asked for some sort of “religious text” or a “note from a minister” to support the waiver request, but she could not do so because she had no minister.
Subway denied a waiver because it was unaware of any religion requiring a nose ring. The employee was told she had to comply with Subway’s uniform policy by removing the nose ring and if she did not “show some sort of bona fide documentation regarding [the] nose ring and its significance to [her] religion within five days,” she would be terminated for insubordination and violation of company policy. The employee did not provide any documentation and refused to remove the nose ring while working, so she was terminated.
Defendants asserted in litigation that they had offered the employee two reasonable accommodations, both of which she refused. First, they offered to allow her to cover the nose ring with a flesh-colored Band-Aid. Second, they offered to allow her to leave the store when the inspector from Subway Development came by each month so that the store would not be written up as “out of compliance” based on her wearing of the nose ring. The district court found that neither offer was a reasonable accommodation and that no undue hardship existed.
Gingerbread Man Necklace: In Krielcamp v. Roundy’s, a federal court rejected a grocery store employee’s claim that his employer had failed to accommodate his religion when it had required him to wear a gingerbread man necklace as part of a sales promotion. Because the employee could not point to any conflicting religious belief—aside from perhaps an understandable aversion to wearing gingerbread men necklaces—that conflicted with the requirement, he had no claim.
In sum, while in some cases an employer may be alerted to, or aware of, the religious nature of a practice, in other circumstances it can be difficult to know whether an employee’s claim relates to an actual, if obscure, religious practice or whether it reflects a creative effort by employees to circumvent company policy. As new religions become more prevalent in America’s social network, the uncertainties created by the ambiguities in the definitions of religion and religious practice are bound to increase. Workplace investigators need to be aware that these cases can involve both a religious accommodation claim as well as disparate treatment claim and investigate each theory accordingly.