Troy P. Foster and Stephanie M. Cerasano, Editors
Ford & Harrison LLP

Vol. 15, No. 1
June 2008

JUSTIN TIME

Don't play fast and 'loose' with your dress code

Justin Pierce

Q We run a manufacturing facility here in the Valley. Obviously, we have a pretty strict grooming and dress code for employees who run the machinery in our facility so we can maintain a safe job site. One of the requirements is that they cannot wear loose clothing or anything on their heads.

One of our employees at the facility is a Muslim woman. She recently came in to request (well in advance) that she be allowed to wear a headscarf during the Muslim holiday Ramadan, which will basically last all of September. Knowing that her request to wear a headscarf would violate our policy but also concerned about the religious implications of it, I put her request on hold for now and told her I would get back to her. Fortunately, because she asked so far in advance, we have plenty of time to figure this out!

Anyway, this will be her third year with the company, and she has never asked to wear a headscarf during any of the other years, which makes me wonder if she's really serious about this whole headscarf thing. Her performance has been slipping lately, and I almost wonder if she's not just doing this to protect herself or otherwise set us up for a lawsuit. In any event, I certainly don't want to get the company or myself in trouble here. Can I enforce our policy, or will doing so land us in hot water?

A I think you can enforce your policy unless there's a reasonable accommodation (yes, just like the Americans with Disabilities Act, or ADA) that would allow her to wear the headscarf but wouldn't place an undue hardship on the company. If you enforce the policy without offering the accommodation, you could be in for a religious discrimination claim.

First of all, to even have a religious discrimination claim in Arizona, an employee must show that she has a sincere religious belief that conflicts with an employment policy. If you're ever sued over this situation, you might have a defense that her belief isn't sincerely held since she has never wanted to wear the headscarf during Ramadan in the past. Be careful, though; I know of at least one Ninth Circuit decision in which the court said that just because somebody might not have had a sincerely held belief in the past, that doesn't mean he doesn't have such a belief now. And even if your employee didn't practice it before, she still could have had a sincerely held belief. This issue is hard to win on, so let's look at what you need to do for now.

Just like with the ADA, you need to enter into an interactive process with your employee in which you'll basically negotiate with her to determine what accommodation is needed. Given the legitimate safety issues associated with an employee wearing loose clothing or a headscarf around the heavy machinery in your facility, just allowing her to wear the headscarf while performing her normal duties appears to be out of the question. So you need to find out what she proposes as an alternative.

Perhaps there's a position she can fill during Ramadan that doesn't require her to work near the machines. If there is, then you need to determine if allowing her to perform that job will be an undue hardship ― e.g., you would need to demonstrate that having her away from her normal position would be detrimental to your operations (and, by the way, you'll need to make a compelling case that she's vital to that particular position to win this argument). Or if she's not vital to her position during the month of September and you have no other job she could fill during that time, you could offer her an unpaid leave of absence during the holiday.

The bottom line is, you need to enter into the interactive process now to come to some sort of resolution. Because of the highly fact-specific inquiries involved, such as whether her belief is sincerely held now, whether a proposed accommodation is reasonable, or whether any proposed accommodation would create an undue hardship, you should seek legal guidance during the process to help in making those judgment calls.

In this monthly column, attorney Justin Pierce answers your questions "just in time." If you have a question you would like him to answer, send an e-mail to jpierce@fordharrison.com or call him directly at (602) 627-3505.

Copyright 2008 M. Lee Smith Publishers LLC

ARIZONA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact any of the editors.