NEW YORK—With increasing frequency, I am called by a client company or a prospective client to ask about the rights of employees to wear religious articles at work. After a brief discussion, I inform them that employers cannot generally enforce a policy prohibiting employees from wearing articles of religious importance at work. Here are a few of the guidelines associated with this question:

• Safety and Health Concerns. Employers do have rights when safety is at issue to prohibit an employee from wearing any article or clothing, including religious article/piece of jewelry that could become caught in machinery. Safety issues do not need to be disregarded just for the sake of accommodation.

Health concerns can occur even if a piece of jewelry drops into chemicals that cause volatile fumes. Of course, the employer must enforce its policy for all jewelry for employees, not just pieces of religious importance.

• Court Rulings. Religious belief has been defined by the U.S. Supreme Court as “a belief that is both ‘religious’ in the employee’s own scheme of things and sincerely held by the employee.”

As such, an employer should not question the employee’s belief. In one case, the court specifically ruled that the employee does not have to show that the issue itself is a “true religious tenet,” but only that the person “sincerely believed it to be religious in her own scheme of things.”

This issue of accommodating religious apparel or insignia has recently been enforced by the Equal Employment Opportunity Commission (EEOC) in a high-profile case against Abercrombie & Fitch. That case upheld the right of a practicing Muslim woman to wear a headscarf which did not meet the “look” that the company required.

• Interactive Process. In most of these cases, exploring alternative solutions is a good idea. The request for a religious accommodation can trigger the “interactive process,” wherein the employer and employee discuss possible ways to honor the employee’s requests. Sometimes if management is informed of the request and gets more information, options might appear that were not considered earlier in the process.

This is an expanding area of the law, as more individuals are involved with religions that have stricter requirements than previously. Before denying any religious accommodation, I recommend to clients and prospective clients that they try engaging in the interactive process noted above, and if that is not successful, to seek legal counsel before a final decision is made.

Hedley Lawson, Contributing Editor
Managing Partner
Aligned Growth Partners, LLC
(707) 217-0979
hlawson@alignedgrowth.com
www.alignedgrowth.com