Burger King Forbids Cashier’s Skirt, Faces EEOC Suit

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Burger King has found itself in hot water over its refusal to allow a Pentecostal Christian employee to wear skirts to work. A federal court will now decide whether the burger chain violated Title VII of the Civil Rights Act of 1964, which protects workers’ religious beliefs against unlawful employment practices.

The Equal Employment Opportunity Commission on August 22 sued a BK franchise in Texas on behalf of Ashanti McShan, who says the burger chain promised her in her interview for a cashier position that her adherence to her religious belief that women must only wear skirts and dresses would not be a problem. But when she showed up for work in a skirt – a violation of BK’s dress code that requires pants – she was sent home, according to the complaint.

“Generally, employers are required to reasonably accommodate the sincerely held religious beliefs of their employees unless it would impose an undue hardship,” writes Philip K. Miles III, an associate with McQuaide Blasko in State College, Pa., in a recent comment on the case. “Courts have allowed uniform requirements to trump religious garments in limited circumstances.”

Sincerity Counts

Whether McShan’s religious belief is legitimate will not likely be an issue, Miles says. “In most cases whether or not a practice or belief is religious is not at issue.” But if it is, the EEOC “will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

Undue Hardship

Philip K. Miles III

The key in such cases is often whether the employer can show that making the religious accommodation would pose an “undue hardship” to the business. Courts have established that an undue hardship would force the employer to pay more than a “de minimis” (or negligible) cost. Safety concerns can also count as undue hardship for employers.

For example, Miles points to a recent case out of the 3^rd Circuit, where the court “held that requiring prison contractors to allow Muslim headscarves would impose an undue hardship,” he says. “However, there were serious safety and security concerns such as misidentification within the prison, smuggling contraband and weapons, and using the scarves against the prison employees in an attack.”

“Presumably Burger King does not face these concerns, but perhaps they could identify some safety concerns,” he notes. “For example, if the skirt hangs loosely it could get caught in machinery or increase the risk involved with working around fire. It’s probably a tough sell, but not impossible.”

Image May Be Everything

McShan could face an argument by BK that its uniform policy is crucial to its image – other employers have tried such arguments, with mixed success.

When the employer falls within the narrow category of having military characteristics – a police force, for instance, or a security company, perhaps – courts are not likely to recognize a exceptions to a neutral uniform policy, says Miles. The work force in that situation needs to appear impartial and religiously neutral.

But courts have ruled differently on other employers’ arguments that accommodating certain fashions would damage their public image. A federal court in Arizona didn’t buy Alamo Rent-A-Car’s argument that allowing an employee to wear a religious head scarf at a rental counter would damage the company’s “carefully cultivated image.” But the 1^st Circuit held the opposite in the case of Costco forbidding facial piercings, saying the company could legally cultivate a “professional image” as a legitimate business determination.

If your employer is bringing the heat regarding your religion-inspired clothing, first check your workplace’s rules about religious accommodation requests, recommends Miles. “Employee handbooks, collective bargaining agreements, and employment contracts are often good places to look for such a policy,” he notes. “Absent a specific procedure for requesting accommodations, employees should notify their supervisor and/or human resources of the conflict between their religion and a specific job requirement.”

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