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February 4, 2013

The Whopper Skirt Issue

Filed under: General HR Buzz6:30 am

Back in the early days of human resources, religious discrimination was limited to fairly cut-and-dry cases such as accommodating employees by adjusting schedules so they could have time off for their religious holidays.  With the continued diversity of our population, religious discrimination cases seem to be in the forefront and we are warned – rightfully so – to carefully review any request we have from employees asking for religious accommodation.

Such is the case regarding a franchisee of a Burger King restaurant outisde of Dallas, Texas.  I don”t visit Burger King very often, but I do recall that the employee uniforms are pretty standard and similar to those of other fast food restaurants – the basic shirt and black slacks.  For employee, Ashanti McShan, wearing black slacks was not allowed by her Pentecostal religious beliefs.  When she arrived at work for orientation with a long black skirt on (this isn”t one of those “skirt-too-short” dress code violations), she was informed she could not wear a skirt and was asked to leave the store.

She then filed a complaint with the Equal Employment Opportunity Commission (EEOC) for religious discrimination, a violation of the Title VII of the Civil Rights Act of 1964.  The filing explains that the “defendant had assured her that she could wear a skirt to work.  However, when she arrived at work for orientation, the store management informed her that she could not wear a skirt and that she had to leave the store…  The result of the foregoing practices has been to deprive Ashanti McShan of equal employment opportunities because of her religious beliefs and observances as a Christian Pentecostal.”

With the legal standard regarding accommodations for religious beliefs being “undue hardship”, it doesn”t seem that this simple request would place the employer in a situation where undue hardship would occur.  The question is “do uniform policies trump a religious observance without articulation of any hardship?”

This will be an interesting case to follow.  In the meantime, it is prudent for employers to be conservative when requests for religious accommodation arise.  Failing to honor a  small request could turn into a costly mistake.

Source:  EEOC Attorney Meaghan Shepard, Regional Attorney Robert Canino Dallas District Office

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