Question: Our company has a dress code that specifies the type of clothing all employees must wear. I know that there are laws that say I have to provide accommodations to individuals based on their religion, but can I get around that by telling all employees in the interview that we have a dress code that applies to all employees?


Answer: The California Fair Employment and Housing Act and federal Title VII prohibit employers from engaging in discrimination, harassment, or retaliation based on religion. Both laws require employers to reasonably accommodate the religious beliefs and practices of employees and applicants. An employer cannot avoid these accommodation requirements by relying on a dress code as clothing retailer Abercrombie and Fitch learned when it unsuccessfully tried to defend itself on that basis in three federal lawsuits.
In 2009, the Equal Employment Opportunity Commission (“EEOC”) sued alleging that an Abercrombie Kids store in Tulsa, Oklahoma did not hire a 17-year-old for a sales position because she wore a hijab (“headscarf”) during the interview due to her sincerely held religious beliefs. Abercrombie claimed that the hijab violated their “Look Policy,” which was an internal dress code that prohibited employees from wearing head coverings. Abercrombie argued it was an undue hardship to allow employees to wear headscarves. However, it was discovered that they had made at least eight exceptions to that policy in the past. The EEOC won the case.
In 2010, the EEOC sued when an Abercrombie Kids in Milpitas did not hire an 18-year-old who wore a hijab to her interview for a job that would have involved stocking merchandise. At the interview, she was asked if she was Muslim and if she had to wear the scarf. The interviewer marked “not Abercrombie look” on the interview form. In 2011, the EEOC again sued claiming that Abercrombie fired a Muslim teenager from her stockroom job in a San Mateo store. The employee was allowed to wear headscarves as long as they were in the store’s colors, but a few months later she was told that the hijab violated the “Look Policy.” She was fired when she refused to remove it. In both cases, Abercrombie argued that deviating from the Look Policy threatened the company’s success and allowing the wearing of hijabs was an “undue hardship.” The court rejected that argument, and Abercrombie eventually settled the two cases.
In California, to successfully show an undue hardship, an employer must show “significant difficulty or expense.” Consideration is given to factors such as the nature and cost of the accommodation, the financial resources of the facility and the employer providing the accommodation, the type of operation, and the nature of the employee’s duties. If an employee’s proposed accommodations really would pose an undue hardship, the employer must then explore alternative accommodations. Under California law, that alternative cannot include just segregating the employee from others.
Employers should keep in mind that the California and federal laws do not just protect members of traditional, organized religions. The laws are very broad and protect individuals with sincerely held religious beliefs. On its website, the EEOC notes that religion includes “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others,” and that the laws extend to “those who are discriminated against or need accommodation because they profess no religious beliefs.”