Many hospitality employers spend time, money and thought creating a brand or “look”—something beyond just a logo or store colors that stands out just by looking at the very employees who work there. The way they look. The way they dress.
Is this legally safe? The answer is “yes”… and “no.” Creating “that special look” is fine, but only as long as it doesn’t infringe on one of the protected categories under federal or state discrimination laws. And that includes not only race and sex, but—as some recent, high-profile cases have shown—religion.
‘You’ll be fine if you lose the headscarf’
Samantha Elauf, a 19-year-old community college student from Tulsa, wore a black headscarf (called a hijab) to her interview with retail giant Abercrombie & Fitch. She was not hired, and she later heard through a friend that it was because of her dress. Elauf filed a charge with the Equal Employment Opportunity Commission, and in its defense Abercrombie stated that it failed to hire her because she violated the “Look Policy,” under which “associates must wear clothing that is consistent with the Abercrombie brand, cannot wear hats or other coverings, and cannot wear clothes that are the color black.”
Elauf filed a lawsuit and recently was awarded US$20,000 by a Tulsa jury.
Abercrombie has been sued yet again more recently, this time by Hani Khan, who was in fact hired, at least initially. She was told she would be allowed to work in the company’s stockroom, providing her hijab matched company colors of navy blue, gray or white, according to reports. But her job in the stockroom also required her occasionally to be on the sales floor, and when she was spotted by a district manager she was told to remove the scarf. She refused and was fired.
But don’t employers have rights?
Of course they do, and that includes the right to set the tone, style and, yes, the “look” of their employees. In fact, employers tend to win dress-code lawsuits more often than not. Establishing a corporate image allows employers to set requirements for clothing, makeup, jewelry (or lack of it) and other “mutable” factors. This right is especially strong when aimed at employees who meet with the public, such as front desk clerks or wait staff. Even such subjective standards as “hip” or “cool looking” have been upheld as legal.
But there are certain “immutable” factors that are off limits because they are protected by federal or state law. These are things such as an applicant’s race, sex, ethnic background or national origin, and religion. Refusing to hire minorities because they don’t fit a company’s corporate image would not get to first base legally, and the vast majority of employers understand this instinctively.
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In the area of religion, things get a little trickier. Many religions require distinctive garb or appearance, and it’s certainly not limited to Muslims. Sikhs, Rastafarians, many Jewish groups, and some Pentecostal Christian groups follow similar dress or appearance guidelines. An employer’s obligation is to never give an automatic “no” to a religious-based request, even if the request violates longstanding company policy.
The proper response—even if the request sounds farfetched on the surface—is to attempt a reasonable accommodation. That’s defined as some accommodation, such as a waiver of policy or slight change in job duties, which does not cost the employer any significant amount of money. (Note that this is not the same standard as reasonable accommodation under the Americans with Disabilities Act, which has much stricter requirements.) If you can make such an accommodation, then you must make it.
The response of asking the employee to wear a headscarf of store colors is likely a reasonable one. In fact, a similar case arose in Britain at an Ikea store. Female Muslim staff members were supplied with headscarves that were not only in the corporate colors of navy blue and yellow but which actually had the Ikea logo sewn into the back. This approach was applauded by the Muslim Council of Britain. Similar arrangements have been reached by other companies including well-known Domino’s Pizza, which agreed to allow employees to wear the signature Domino’s baseball cap over a red and blue scarf.
What’s next?
The EEOC reports a 31% rise in claims of religious discrimination claims during the last 10 years. Many of these are settled amicably. Of the ones that aren’t, the companies are certainly not always found to be unlawful, especially since many such claims are based on flimsy religious grounds attempting to justify tattoos and piercings. Indeed, as employment defense lawyers know well, things are not always what they seem in EEOC press releases and the pending cases in Abercrombie might well end up in the company’s favor.
But even when an employer wins a discrimination suit the outcome is often unpleasant, either because of the lost time and money, the investment of energy and emotion, and of course the unfavorable publicity. In the words of Halla Banafa: “To this day, I can’t walk into Abercrombie & Fitch stores. They didn’t just miss out on a hard worker, they lost a customer.”
While these examples focus on the retail industry, hoteliers can learn from them. The diverse workforce and continued globalization of the hotel industry makes it important for hiring managers, human-resources professionals and general managers to be alert that dress codes need to be adaptable when it comes to current legal opinion.
Andria Ryan is a partner in the Atlanta office of Fisher & Philllips, LLP and serves as the chair of the firm's Hospitality Industry Practice Group. She represents employers in virtually every area of employment and labor law and can be reached at 404-240-421 or alureryan@laborlawyers.com.
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