Civil Rights Reporter 

A pair of recent cases addressed the question of the proper standards regarding religious accommodations in the workplace. These cases came to different results based on what might be viewed as a very slight distinction.

A large clothing retailer established a grooming policy requiring its employees to act as human models by wearing clothing in the style of clothing they typically sell. Their policies prohibited employees from wearing head coverings. In separate cases, an employee and an applicant for employment claimed that their religious beliefs were violated when they were rejected because they wore head coverings. Both asserted that they were Muslim and that their religion required them to wear a scarf-like head covering called a hijab.
 
The employer’s key defense was that deviations from its established grooming policies would hurt its success by detracting from the in-store experience of the customers and negatively affecting their brands. However, no one could present a specific example of how an employee wearing a hijab had a negative impact, and there was no tracking or correlation between deviations from their grooming policies and any negative impact on sales. Also, the employer had allowed almost 80 exceptions to the grooming policy since 2005, including allowing male employees to grow facial hair or wear a yarmulke and allowing female employees to wear visible jewelry of a religious nature, long skirts, and even hijabs. There was no evidence that any of these exceptions caused damage to sales, reputation, or the business model for these stores.
 
That would seem to end the matter, but as noted above there was a crucial difference in the facts of the two cases at issue that resulted in very different outcomes.
 
In one case, an employee had performed her job while wearing a hijab for more than four months without incident. In February 2010, a district manager was engaging in a regularly scheduled store visit and saw her in her hijab. He contacted the senior manager of human relations, who informed her that she could not continue to wear her hijab. After explaining that her religion required her to wear a hijab, the employee was terminated for violating the grooming policy. Noting the lack of evidence that allowing the employee to wear her hijab did any damage to the employer’s business or sales, the court ruled for the EEOC and the employee.
 
In a similar case, an applicant for employment was being interviewed for a position. She wore a hijab during her interview with the assistant manager and was not hired as a result. While it would seem this should end the same way as the first case, “not so” said the court. The applicant acknowledged that she never told the assistant manager during the interview that she was Muslim or mentioned her hijab, let alone explaining that she wore it for religious reasons (as opposed to the employee in the first case, who did make it clear prior to her termination that she wore her hijab for religious reasons). For her part, the assistant manager testified that she didn’t know the applicant’s religion, but “assumed she was Muslim” and “figured” that she was wearing the hijab for religious reasons. However, the court found that suspicion and assumption aren’t sufficient to put the employer on notice that the applicant wore a hijab due to her religion.
 
The court noted that employers are admonished not to inquire about the religious beliefs of employees or prospective employees and not to make assumptions about the religious beliefs of their employees or prospective employees. Thus, a statement asking if they were Muslim because of their clothing could create serious issues. In order to prevent employers from being between the rock of not being allowed to inquire as to religion and the hard place of having to accommodate something that they suspect may be religious in origin, the court placed the responsibility on the individual to explain his or her religious belief and articulate the need for an accommodation. In other words, it isn’t a “knew or should have known” standard, it’s a “knew beyond any doubt and/or was specifically told by the employee” standard. Thus, the applicant’s failure to explain that she wore her hijab due to her religion was fatal to her case.
 
Accordingly, the answer to the question of when is a scarf not a scarf is when it is worn by someone because their religion requires it and the employer knows that it is being worn for religious reasons.