EEOC Continues to Slam the Brakes on Employer Dress Code Policies

November 9, 2016 | By

Nearly all employers maintain a dress code, oftentimes for different reasons. For example, service employees may be required to wear uniforms so that customers can easily identify them. Likewise, construction and manufacturing employees may be required to wear protective clothing to mitigate safety risks. Although state and federal anti-discrimination legislation recognizes an employer’s legitimate need for a dress code, the EEOC continues to take aim at employers who fail to engage in the interactive process when employees request a religious accommodation. The interactive process consists of good faith dialogue between the employer and the employee regarding potential accommodations that may be acceptable to the employee without placing an undue hardship on the employer’s business.

Last week, the EEOC filed a lawsuit against Akebono Brake Corporation for its alleged failure to provide a religious accommodation to a prospective employee. In particular, the complaint alleges that Akebono failed to hire Clintoria Burnett after she informed Akebono that she was unable to comply with Akebono’s dress code requiring her to wear pants. Ms. Burnett, a Pentecostal Christian, had never worn pants in her life, and maintained that her religious beliefs dictated that she must either wear a dress or a skirt.

Akebono has yet to respond to the complaint. However, if the EEOC’s allegation that Akebono failed to engage in the interactive process is substantiated, Akebono faces an uphill battle. The EEOC recently reached a $40,000 settlement with a KFC franchisee after a Pentecostal Christian employee was terminated for refusing to wear pants. Similarly, the EEOC’s guidance specifically states that an employer’s failure to allow a Pentecostal Christian employee to not wear pants violates Title VII, unless the employer can demonstrate that the failure to wear pants poses an actual safety risk.

Insofar as Akebono may argue that dresses and other loose clothing pose a serious safety risk in its manufacturing plant, it may still be subject to liability if the EEOC is able to establish that Akebono could have reasonably accommodated Ms. Burnett without jeopardizing her safety. In the event that Akebono is held liable for violating Title VII, the available remedies include back pay, reinstatement, punitive damages and attorney fees.

Because of the potential exposure, employers should refrain from enforcing bright line rules in connection with their dress code policies. Rather, requests for religious accommodation should be addressed on an individualized basis. While an employer is not required to accommodate every request for a religious accommodation, the failure to engage in the interactive process invites EEOC scrutiny and increases the risk of liability.

As always, HR Legalist urges our readers to consult legal counsel if you have any questions about your dress code or about a request for a religious accommodation.