You may be in violation of the law by having discriminatory hiring practices. That’s what Abercrombie & Fitch found out recently. The U.S. Supreme Court in EEOC v. Abercrombie & Fitch ruled against the company in a case involving a Muslim woman who wore a hijab, a head covering. The company had a “look policy” that banned “head caps” for employees. The Court said this policy was discriminatory in this case (it violated religious protections). This was so even though she never mentioned her need for a religious accommodation. The court said that the company should have assumed that she needed an accommodation and given her one.
The message from the case: a job applicant or employee does not have to inform the company of a need for an accommodation.
What’s discriminatory?
The U.S. Equal Opportunity in Employment Commission (EEOC) says:
“[I]t is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.”
So what can or can’t you do? When can you assume that an applicant or employee needs an accommodation (since you can’t ask about someone’s religion or other matters that are protected)?
Dress codes
According to the EEOC, you can have a dress code. For example, you can require uniforms. If you allow employees to choose their dress, you can’t discourage certain ethnic wear; this may violate discrimination against national origin.
However, if your required garb conflicts with an employee’s religious beliefs, you must make an accommodation. Also, a request for an accommodation because of a personal disability should be made unless doing so means undue hardship for your business.
Tattoos and body piercings
A policy against tattoos and/or body piercings is not discriminatory per se (it may be if such body art is religiously required). Thus, for example, you can ask that tattoos be covered up and that jewelry in body piercings that are visible be removed in the workplace.
In crafting a policy, take into account changing mores. Currently, 14% of all people in the U.S. have tattoos; that statistic rises to 40% for those age 26 to 40. Having an anti-tattoo policy in your company may unduly restrict the talent pool.
Conclusion
The Supreme Court’s case hasn’t made things clearer for employers. Before you create any workplace policy, run it by an employment law attorney. Once you create a policy that passes legal muster, then include it in your employee handbook so everyone in your organization knows the rules.
