October 2015 Bar Bulletin
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October 2015 Bar Bulletin

Workplace Policies Can Limit Wearing Jewelry

By Karen Sutherland

 

Many years ago, I worked for a business that required compliance with a strict appearance policy. The only jewelry items allowed under the policy were one small metal stud earring in each earlobe and a wrist watch.

There were two reasons for the policy. One reason was the nature of our work, which involved food service in an era where employees were not given disposable gloves. The other reason was the employer's desire for employees to present a uniform, professional image to the public.

Would a similar appearance policy be permissible today? Only if exceptions were allowed to accommodate religious beliefs and disabilities.

Jewelry and Title VII

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., as amended, prohibits employers with at least 15 employees (including private sector, state and local government employers), as well as employment agencies, unions, and federal government agencies, from discriminating in employment based on race, color, religion, sex or national origin.1

The definition of religion under Title VII is very broad, as discussed in an article this author wrote for the Bar Bulletin that appeared in October 2013. To summarize:

Title VII protects all aspects of religious observance, practice, and belief, and defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.2

Title VII protects employees from discrimination based on religious practices or observances, including wearing jewelry, even if other people may wear the same jewelry for non-religious reasons.3 For example, a necklace that has a religious symbol on it that is worn because it is fashionable would not be covered by Title VII, but a cross worn as a religious practice would be. Similarly, a wedding ring that belonged to an employee's grandmother that is worn for sentimental reasons would not be protected under Title VII, whereas a similar ring worn to reflect a religious commitment would be protected.

Jewelry also does not have to be a traditional, widely accepted religious symbol in order to be covered by Title VII. A metal stud or barbell or other body jewelry worn in a piercing could also be covered by Title VII if it is worn as a religious observance or practice.

If an employer has a legitimate reason to question whether the jewelry is being worn as a religious practice, the employer can ask the employee for information reasonably needed to evaluate the request for accommodation. However, the EEOC's guidance states, "Because this definition [of religion] is so broad, whether or not a practice or belief is religious typically is not disputed in Title VII religious discrimination cases."4

Jewelry and the ADA

The Americans with Disabilities Act (ADA) may also require accommodations relating to jewelry and other aspects of an employer's appearance policy. For example, if an employee needed to wear a Medic Alert tag due to a disability, the employer could not ban the wearing of the tag without determining first whether there was a reasonable accommodation.

Similarly, if an employer had a uniform that required the wearing of jewelry such as pins with company logos or metal name tags (or zippers) and due to a disability an employee does not have the manual dexterity to put it on or take it off, the ADA would apply. Likewise, if an employee has a severe skin reaction to the metal in employer-required jewelry or accessories due to a disability, then the ADA would apply and the employer would need to engage in an interactive process with the employee to determine if a reasonable accommodation was available.

The reasonable accommodation process. The reasonable accommodation concept applies to both accommodations under Title VII and under the ADA, but the process is somewhat different. Under the ADA, the interactive process between the employee and employer may also involve one or both parties consulting outside resources, such as medical providers, treatises, vocational counselors, product suppliers, and/or advocacy groups that have worked with other individuals who have dealt with similar situations.

For example, if the disability and need for accommodation were not obvious, the employer could ask the employee to provide verification from the employee's medical provider. The employer and employee also could look in the name tag or uniform manufacturer's catalog to determine if there was an alternative available that would provide the uniformity and professional appearance desired by the employer and be usable by the employee.

Since Title VII does not require the tenets of a religion to be written down, there may not be a text or other document to consult regarding acceptable alternatives. Similarly, since a religion recognized under Title VII may have very few followers, there also may not be an expert to consult regarding acceptable alternatives.

Therefore, the interactive process may consist of a dialogue between the employee and the employer without any outside resources to consult. For example, the employer could engage in a dialogue with the employee regarding whether the religious item could be worn under the employee's uniform, or whether body jewelry in a piercing could be removed or covered up during working hours.


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