Image is everything: corporate branding and religious accommodation in the workplace.

• Author: Flake, Dallan F.
• Position: Continuation of IV. Key Cases Weighing Religion Against Image through Conclusion, with footnotes, p. 725-754

1. Cases Favoring Image over Religion

   Courts typically sided with employers in the earliest cases pitting religious expression against corporate image. Their analyses focused primarily on whether there were possible inconsistencies between the proposed accommodations and the company's image, rather than whether such inconsistencies generated customer complaints, lost business, or other tangible evidence of hardship.

   One of the first cases addressing a claim of image-related undue hardship was EEOC v. Sambo's of Georgia, Inc. (173) The EEOC brought suit on behalf a practicing Sikh, whose religion prohibited him from shaving his beard, after Sambo's rejected his application for a restaurant manager position pursuant to its grooming policy that forbade restaurant personnel from having any facial hair other than a neatly trimmed mustache. (174) At the bench trial, Sambo's argued that granting an exception to its grooming policy would constitute undue hardship because the policy was necessary to protect the "clean cut," sanitary image Sambo's had built up over the years. (175) Sambo's presented no evidence of customer complaints, and instead relied on its management's perceptions and experience to support its claim that a "significant segment" of family-restaurant consumers preferred restaurants whose employees were clean-shaven, either out of "a simple aversion to, or discomfort in dealing with, bearded people; from a concern that beards are unsanitary or conducive to unsanitary conditions; or ... from a concern that a restaurant operated by a bearded manager might be lax in maintaining its standards as to cleanliness and hygiene in other regards." (176) Sambo's supplemented its testimonial evidence with a National Restaurant Association survey showing cleanliness ranked as a "consideration of utmost concern in the minds of the consuming public." (177)

   The district court easily determined that Sambo's would suffer undue hardship by exempting the plaintiff from its grooming policy. (178) The court found the exemption "would adversely affect Sambo's public image and the operation of the affected restaurant or restaurants as a consequence of offending certain customers and diminishing the 'clean cut' image of the restaurant and its personnel," thus imposing "a significant cost to Sambo's Restaurants that is more than merely de minimis" (179) In rejecting the EEOC's contention that Sambo's illegally considered customer preference in maintaining its grooming policy, the court noted that even if the policy were "nothing more than an appeal to customer preference, ... it is not the law that customer preference is an insufficient justification as a matter of law." (180) The court did not stop there, noting that even if Sambo's had discriminated against the plaintiff because of his religion, such discrimination was justified because "clean-shavenness is a bona fide occupational qualification for a manager of a restaurant, such as those operated by Sambo's," that markets to families. (181)

   The deference the Sambo's court afforded the employer became standard in subsequent cases involving image-related hardships. For example, in Johnson v. Halls Merchandising, Inc., the court did not cite any evidence of undue hardship in awarding the employer summary judgment. (182) The plaintiff claimed that Halls Merchandising failed to reasonably accommodate her religiously mandated need to "preface nearly every sentence she spoke with the phrase 'In the name of Jesus Christ of Nazareth.'" (183) Halls argued it could not reasonably accommodate the plaintiff without potentially damaging its relationship with customers. (184) The district court agreed, concluding Halls had "legitimate and reasonable interests" in operating its retail business "so as not to offend the religious beliefs or non beliefs of its customers." (185) The court did not reference any evidence in the record indicating the plaintiff's religious expression had or was likely to jeopardize customer relationships; instead, it focused on the fact that her religious expression was at odds with Halls's reasonable interest in maintaining a nonoffensive environment for customers. (186)

   In Hussein v. Waldorf-Astoria, a Muslim banquet waiter brought suit against one of New York's most iconic luxury hotels, the Waldorf Astoria, for refusing to let him work when he arrived for his shift with a beard in violation of the hotel's grooming standards. (187) Although the plaintiff claimed his beard was "part of [his] religion," hotel management denied his request for an exemption from the grooming policy in part because they believed it would "jeopardize the hotel's reputation" as well as "undermin[e] its efforts to maintain standards and discipline among the banquet waiters." (188) The court granted the Waldorf's summary judgment motion, holding the hotel had "valid, nondiscriminatory reasons" for its no-beard policy and that accommodating Hussein's last-minute request for an exemption was an undue hardship as a matter of law. (189) The court did not elaborate on what, if any, evidence justified this conclusion but simply pointed out that courts in Sambo's and other cases had determined that "clean-shavenness is a bona fide occupational qualification in certain businesses and, in those situations, as long as the employer's grooming requirement is not directed at a religion, enforcing the policy is not an unlawful discriminatory practice." (190)

   Anderson v. U.S.F. Logistics (IMC), Inc. (191) was the first corporate image case involving an actual customer complaint. There, the plaintiff sought an injunction against her employer, U.S.F. Logistics, so that she could use the phrase "Have a Blessed Day" in her written communications with customers as an expression of her Christian faith. (192) U.S.F. permitted her to use the phrase until a representative of its largest customer complained. (193) U.S.F. subsequently reprimanded Anderson and implemented a new policy prohibiting employees from "using 'additional religious, personal or political statements' in their closing remarks in verbal or written communications" with customers or coworkers. (194) Despite its changed policy, U.S.F. continued to allow the employee to "use the 'Blessed Day' phrase with coworkers, to hang objects containing various religious phrases in her work area, to read the Bible on her work break and to listen to a religiously oriented radio station at her work station." (195) The district court denied the plaintiff-employee's request for an injunction, and the Seventh Circuit affirmed. (196) On appeal, she argued that U.S.F. failed to present the lower court with any evidence that she had imposed her religious beliefs on customers through her use of the "Blessed Day" phrase. (197) The Seventh Circuit disagreed, reasoning that the customer complaint indicated the employee's religious practice could, at the very least, damage U.S.F.'s relationship with its largest customer. (198) The court concluded that permitting the employee to express her religion in various ways within the office was a reasonable accommodation but requiring U.S.F. to let her express her religion to customers constituted undue hardship. (199)

   Birdi v. UAL Corp. (200) was the first case to address whether an employer can transfer a frontline employee whose religious expression conflicts with the corporate image to a position that does not involve customer contact. The plaintiff-employee, a Sikh, sued United Airlines for removing him from his position as a customer service representative based on his need to wear a turban for religious purposes. (201) United's uniform policy required that "[a]ll headgear must be removed when indoors." (202) United "attempted to accommodate [the employee] by offering him six alternative positions in which he could wear his [turban]." (203) The employee refused, claiming the proposed accommodations were unreasonable, primarily because four of the positions offered would not have allowed him face-to-face customer contact, which was the main reason he took the original position. (204) The district court disagreed, concluding United fulfilled its accommodation obligation by offering the employee multiple alternative positions, one of which involved telephone customer contact and two of which paid more than his current position. (205) The court noted that Title VII did "not require United to accommodate [the employee's] need for face-to-face customer contact"; (206) rather, the company's efforts in offering multiple positions were sufficient to constitute reasonable accommodation. (207) This decision was especially significant as it opened the door for an employer to remove an employee whose religious expression conflicts with the corporate image, provided that the employee is offered a comparable position.

   Cloutier v. Costco Wholesale Corp. (208) provides the most in-depth appellate analysis of the conflict between corporate image and employee religious expression. While working as a cashier at Costco, the plaintiff engaged in various forms of body modification, including facial piercing and cutting, which she claimed was a tenet of her religious beliefs as a member of the Church of Body Modification. (209) When Costco later revised its dress code to prohibit all facial jewelry other than earrings, the plaintiff refused to comply because she believed that her religion required her piercings to be visible at all times. (210) Eventually, Costco offered to accommodate the plaintiff by letting her wear either clear plastic retainers or a Band-Aid over her jewelry. (211) Despite having herself suggested using retainers or Band-Aid coverings as a solution months earlier, the plaintiff rejected this offer, and Costco consequently terminated her employment. (212) During the court proceedings, the plaintiff insisted that the only reasonable accommodation was for Costco to excuse her from its dress code. (213) Costco...