Blog Post: Hats, religion and dress codes. Can you regulate what your employees put on their heads?

The term "religion" includes all aspects of religious observance and practice as well as belief, and the definition of a "sincerely held belief" includes atheists. Under Title VII, an employer must offer a reasonable accommodation to resolve a conflict between an employee's sincerely held belief and a condition of employment – including a dress code – unless the accommodation would create an undue hardship for the employer.

Whether a belief is "sincerely held" determines whether that belief is entitled to the protections of Title VII, and making that determination is "more often than not a difficult and delicate task." What does it even mean?; even judges struggle to answer that question.  A dress code that restricts employees' ability to wear hats or headdresses have a disparate impact on employees who hold certain sincerely held beliefs and observe those beliefs through their attire. If employers take adverse employment actions against employees because of their religious headdress, or unreasonably fail to accommodate an employee's religious observance or practice without undue hardships on the conduct of the employer's business, liability could result.

Despite this difficulty, courts remain willing to engage in the exercise of confirming that an employee has a "religious" or sincerely held belief, and that the headdress is actually protected religious expression under Title VII.

The cases on this issue run the spectrum of unpredictable to "did you make that up?"  For example, in McGlothin v. Jackson Municipal Separate School District, the court held that the discharged employee failed to establish that she wore African-style head wraps based upon her religious beliefs, and therefore failed to prove a violation of Title VII. Instead, the McGlothin court found that the employee's beliefs were "cultural." By contrast, a Washington state court held that it was discriminatory to refuse to promote a server to a more desirable shift because she wore a Muslim headdress.

In addition, an Ohio state court held that the Catholic Church discriminated against an employee by firing him for wearing a monk's hood without formal recognition from the church. The court held that the church failed to prove that allowing plaintiff to wear the hood presented an undue hardship. 

Even if appearance issues are directly tied to an employee's religion, an employer may be able to regulate headdresses to a certain extent. Safety concerns provide a good example of this exception. A New York court held that an employer may require all employees to wear hard hats, even if doing so interferes with an employee's religious expression or belief that requires wearing a headdress or other covering.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney.

This article may not be reprinted or reproduced in any manner without prior written permission of the author. Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.