To address this growing problem, modern policy must be far more flexible, tactful and considerate when it comes to telling staff what they can and cannot wear.
Cases of discrimination
As far as religious dress goes, there’s no rule of thumb, rather, it’s a question of culture; cases of discrimination over religious dress are as many and varied as the individuals at their center.
Abercrombie & Fitch
Fashion brand, Abercrombie & Fitch, were deemed guilty of religious discrimination when they refused the job application of a Muslim woman because she wore a headscarf.
The trendy US clothing retailer argued that the garment fell out of line with the firm’s style, but the applicant’s claim was upheld by the US Supreme Court. Abercrombie & Fitch have since revised their policy which now forbids employees to wear ‘caps’.
Global Luggage Co
In a similar case, a Muslim employee was given a less customer-facing role because her headscarf did not contribute to the store’s drive to attract “a higher class of customer.” Threatened with redundancy during a recruitment drive, the female employee was given the option of resigning with a good reference or risk formal dismissal with no reference.
At a tribunal, a claim for religious discrimination was unsuccessful, but the woman in question was told that an indirect discrimination claim would have been upheld. Later, a claim of unfair dismissal was upheld because the claimant was given “a clear indication that she had no future with the company”.
In a high-profile case, the European Court of Human Rights (ECHR) found that a claimant’s human rights had been breached because she was not permitted to wear a Christian cross at work. It was heard that the employer had not struck a fair balance between the desire to create a corporate image and the employer’s right to show her religious belief.
The ECHR also ruled against a woman who wanted to wear a cross at a hospital where she worked, deeming the interests of health and safety to take precedence over her right to wear a religious symbol.
All these legal cases show that companies can clearly be liable if they discriminate against employees based on their religious dress. To make this clearer, many nations have enacted laws that dictate what a company can and can’t do when it comes to treating workers based on their religion. In the UK, for example, there is the Equality Act 2010.
Of course, this isn’t the case around the world, as discrimination law changes from country to country. In the US, for example, there is Title VII of the Civil Rights Act of 1964, which protects employees’ religion in much the same way as the UK’s Equality Act 2010.
According to the US Equal Employment Opportunity Commission, employees can’t be treated unfavorably when it comes to “hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment” due to their religion. If this is the case, it counts as discrimination.
In the case of religious dress, employers are required to “reasonably accommodate” the beliefs and religious needs of their staff unless they pose an “undue hardship” to the business. For example, if a religious garment was preventing an employee from wearing important safety equipment it would no longer be reasonable to accommodate it.
There’s no hard and fast rule on this, as HR Daily Advisor points out, and there are many gray areas when it comes to the concept of “undue hardship”. As a rule, it’s best to have a conversation with employees before taking any action, and make sure you look into the situation thoroughly and perform risk assessments to accurately assess any safety risks.
The Equality Act 2010
This landmark legislation covers all people in Britain and protects individuals from discrimination, harassment and/or victimization. Freedom of religious expression in the workplace also falls under this protection.
Employers are advised to tread carefully around issues of religious dress when it comes to making a dress policy, as imposing bans or restrictions may amount to discrimination, whether intended or not. As detailed by gov.uk, an individual may be discriminated against in the following ways:
- Direct discrimination: treating someone with a protected characteristic less favorably than others.
- Indirect discrimination: putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage.
- Harassment: unwanted behavior linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for them.
- Victimization: treating someone unfairly because they’ve complained about discrimination or harassment.
It’s important to remember that rules and special arrangements can be lawful, so long as they can be justified. The Abercrombie & Fitch case study illustrates direct discrimination, whereas the Global Luggage Co example could have been a case for indirect discrimination, even though it ultimately led to a victory for the claimant. The final case study shows how rulings can depend on the working environments they stem from.
The modern multicultural workplace
This topic is becoming increasingly important as many countries are becoming more multicultural, and as this occurs it means that workforces are also growing in diversity. Employers are coming up against issues of religious dress in the workplace more often, and therefore need to be prepared.
In the US, for example, the population of Muslims grew from 2.35 million in 2007 to 3.45 million in 2017. While still small in number compared to other religions, the faith is gradually becoming a larger part of the American workforce. This can be seen in studies that found Muslims accounted for 0.9% of US adults in 2014, growing to 1.1% in 2016.
This means employers are more likely to come across one of the more prominent types of religious dress: the hijab. Research has found that although Muslim women who visit mosques are more likely to be employed, those wearing the hijab are less likely to have a job. This indicates that underemployment is more likely to be down to discrimination than anything to do with Islam itself.
If this discrimination continues, organizations are going to be missing out on potential talent and the diverse points of view provided by Muslim employees, while also opening themselves up to potential lawsuits. Make sure you talk to potential employees about their religious dress and consider how your business can work around it, rather than rejecting them outright.
How to change a culture of discrimination
Clearly, religious dress codes and workplace uniforms are not mutually exclusive - quite the opposite; they can co-exist seamlessly, but only if organizations put tolerance and integration at the top of the list where they belong.
Firms can make it clear on the company website and job applications that they uphold and actively pursue their staff members’ rights to religious expression in the workplace. Beyond being a moral obligation, such an approach can nurture the ethnic and cultural balance of a workforce, bringing diversity and an increase in knowledge and awareness, which in turn will bring innumerable, measurable advantages.
If employers need to ban the wearing of any items or introduce a company policy about tattoos in the workplace, piercings or items of religious dress and jewelry, they should ensure that employees are not being indirectly or directly discriminated against; any restrictions should wholly correspond to real business risks or safety requirements.
Ultimately, employers need to invest real thought into the kind of image they wish to project through their company, and ensure that manifestations of faith can be integrated into this, before any limitations on dress code are established.