Costco’s Appearance Crusade

By Alison Wellner

Apr. 1, 2005

In December, a four-year-long court battle came to an end when a U.S. Court of Appeals dismissed a $2 million religious discrimination lawsuit brought against Costco, the nation’s largest wholesale retailer, which logged some $47 billion in sales last year.

    The case, brought by West Springfield, Massachusetts, employee Kimberly Cloutier, was certainly not your average religious discrimination matter. Provoked by a change in the wholesaler’s dress code policy, it pitted facial piercings against professional appearance, and involved, among other things, an eyebrow ring and a small church that few people have ever heard of.

    Beneath this quirky legal matter is an underlying issue of growing concern to all employers: balancing an employee’s religious beliefs against the business interests of a company.

Piercings as religion
    The story began in 2001, when Costco revised its dress code to prohibit all facial jewelry, aside from earrings. Costco made this change in order to promote what the company considered a professional appearance, court records indicate. (Judy Vadney, Costco’s personnel director, declined to comment, citing the recent end of “very expensive litigation.”)

    Kimberly Cloutier, a cashier and an employee since 1997, had numerous body piercings and tattoos on her upper arms. Soon after the new policy was disseminated, Cloutier’s supervisor informed her that she had to remove her facial piercings–in particular, her eyebrow ring, which she refused to do.

    At that point, Cloutier indicated that she was a member of the Church of Body Modification, and said that her eyebrow piercing was part of her religion.

    The Church of Body Modification, established in 1999, has about 1,000 members and encourages its adherents to “grow as individuals through body modification and its teachings” to “promote growth in mind, body and spirit.” It uses a Round Rock, Texas, post office box as its mailing address; several founding members are in Phoenix.

    The church urges its members to be “confident role models in learning, teaching and displaying body modification,” which includes piercing, tattooing, branding, cutting and body manipulation. Court records indicate that Cloutier interpreted this to mean that her piercings should be visible at all times, and believed that she was prohibited from removing or covering her facial jewelry. The conflict with Costco’s dress code was clear.

Religious diversity growing
    An employee’s religious beliefs often enter into the workplace, creating a sometimes awkward–if not potentially litigious–situation for employers, who are required by federal law not to discriminate on the basis of religion.

    While many employers are more familiar with employees’ requests for work-schedule changes to accommodate religious practice and beliefs, a growing number are becoming acquainted with complaints about dress codes on the basis of religion, says Patrick Kilker, an attorney at Eckert Seamans Cherin & Mellott LLC in Pittsburgh. More dress-code requests will come. “With growing religious diversity in this country, you can bet on these cases becoming more common,” he says.

    Many religions impose some sort of requirement upon their adherents in terms of appearance: Some require the growing of facial hair, for example, or the wearing of certain accoutrement, such as a Sikh turban, a Jewish yarmulke or a Muslim hijab, or head scarf. Other religions require certain markings, tattoos or, in the case of the Church of Body Modification, a whole host of practices that might interfere with a company’s dress code.

    These religiously motivated practices leave some companies with a dilemma as to how to accommodate an employee’s religious beliefs if they conflict with standards of grooming or appearance on the job.

Is it a hardship?
    The resolution of this dilemma is not entirely up to a company’s discretion. The law guides a company’s hand, says Patrick H. Hicks, managing partner at the Las Vegas office of the employment law firm Littler Mendelson LLP.

    According to the Civil Rights Act of 1964, “the employer has an obligation to reasonably accommodate an employee’s religious beliefs,” he says, which includes making allowances for an employee’s garb or appearance when it is influenced by religion. “But it’s not an absolute,” he adds. If an accommodation would create an “undue hardship” on the employer, the employer is not obliged to accommodate an employee’s religious beliefs.

    “Undue hardship” and “reasonable accommodation” are terms often sorted out in court, Hicks says. “These cases typically resolve themselves on a case-by-case, fact-by-fact basis. What might be an undue hardship for one company might not be an undue hardship for another. The exact same accommodation might be reasonable for one company and unreasonable for another,” he says.

Negotiations break down
    An employer’s first goal is to stay out of an expensive and uncertain court battle. The first step toward that goal is to strive for a reasonable accommodation that works for the individual employee. “Engage in an interactive process with the employee, ask what it is that the religion requires, and what the company can do to reasonably accommodate,” says Hicks.

    Employers can’t always get the reasonable accommodation they want. The court record shows that early conversations between Cloutier and Costco could not be considered productive.

    A supervisor instructed Cloutier to remove her facial jewelry. Cloutier refused, and the next day filed a religiousdiscrimination case with the Equal Employment Opportunity Commission. When she returned to work for her next shift, she met with the store manager. During that meeting, she suggested covering her eyebrow piercing with a flesh-colored bandage. The store manager rejected this suggestion, and told her to either remove the piercing or go home. She left.

    Several weeks passed, and while Cloutier awaited resolution of her EEOC claim, she was terminated via a letter, which cited her unexcused absences resulting from noncompliance with the dress code. The EEOC mediation process kept the parties in contact, however, and in August, Costco offered to let Cloutier return to work, wearing either a plastic retainer in her piercings to keep the holes from healing and closing, or a bandage over her jewelry.

    Although this was an accommodation that she had suggested earlier, Cloutier now refused. The court records show that Cloutier’s position was that “the proffered accommodations would be inadequate, because the (Church of Body Modification’s) tenets, as she interprets them, require her to display her facial piercings at all times. Replacing her eyebrow piercing with a plastic retainer, or covering it with a Band-Aid would thus contradict her religious convictions.” (By not accepting Cloutier’s initial offer of accommodation, Costco missed “a golden opportunity to avoid four years of litigation,” points out law firm Nixon Peabody in its analysis of the case.)

    Cloutier now maintained that the only reasonable accommodation would be to excuse her from Costco’s dress code, allowing her to wear her facial jewelry to work. Costco’s response: This would interfere with the company’s ability to maintain a professional image. Negotiations broke down.

Victory for employers
    If an accommodation can’t be reached with an employee, the next step is to clearly identify “the legitimate business interests the company is trying to preserve and protect,” says Hicks. The courts often give employers wide latitude in what is considered an undue hardship.

    Several cases, for example, have found that employers are not discriminating when they require an employee or job applicant to be clean-shaven, in order to maintain an image of cleanliness, or for safety matters. For instance, in a 1984 case against Chevron, a court decided that the company did not have to exempt a Sikh employee from a rule requiring that all machinists be clean-shaven, because the policy was based on the necessity of wearing a respirator with a gas-tight face seal.

    In Costco’s case, the business interest was in presenting a neat, clean professional appearance. The court decided that if it forced Costco to create an exception for Cloutier’s eyebrow ring and other piercings, it would create an undue hardship on the company.

    The court held the following: “It is axiomatic that, for better or for worse, employees reflect on employers. This is particularly true of employees who regularly interact with customers. … Even if Cloutier did not regularly receive any complaints about her appearance, her facial jewelry influenced Costco’s public image and, in Costco’s calculation, detracted from its professionalism. … Costco has made a determination that facial piercings, aside from earrings, detract from the ‘neat, clean, and professional image’ that it aims to cultivate. Such a business determination is within its discretion.”

    With that, Cloutier’s discrimination case ended.

    While this was a victory for Costco, and the case was hailed as a victory for employers seeking to balancedress codes against various religious claims, there are a couple of points to keep in mind, says Hicks. If Cloutier did not work as a cashier, but in a position where she did not interact with customers, Costco might have found it difficult to make the same argument against her facial jewelry.

    Second, Cloutier’s hard-line, no-compromise approach worked against her in court, says Kilker. The court cited several cases involving jewelry where employees have insisted that the only accommodation is exemption from a dress code policy. In one case, an employee wore a gold cross pin; in another, an employee took a vow to wear a graphic anti-abortion button for religious reasons.

    Courts take a dim view of the inflexibility of the employee’s stance. “We are faced with the … situation of an employee who will accept no accommodation short of an outright exemption from a neutral dress code. Granting such an exemption would be an undue hardship because it would adversely affect the employer’s public image,” the appeals court held. An employee that offers several accommodations, even if he or she is later rejected by the employer, might fare better in court, says Hicks.

    Finally, it’s important to note the grounds that the court did not decide on: whether Cloutier’s religious convictions were legitimate. First, courts are loath to determine the sincerity of an individual’s religious beliefs, Hicks says. Second, in the eyes of the EEOC, “it doesn’t take much to become a religion,” Kilker says.

    The EEOC, Kilker says, defines religion broadly to include moral or ethical beliefs as to what is right or wrong. “In order to constitute a religion, the employee’s belief must be sincere, and it must occupy a place in the employee’s life that is parallel to the place filled by God, in traditional religions,” he says. “That makes it a low threshold to establish that you are a member of a religion and that you need an accommodation so you can practice or observe that religion.”

    This means that employers shouldn’t get caught in the “is this really a religion game,” says Kilker, when confronted with an employee who is citing religious grounds for noncompliance with a dress code. “Generally, I would err on the side of attempting to accommodate someone’s religion, even if you have doubts that it would constitute a religion, in view of the EEOC’s broad interpretation of what a religion is,” he says.

    An attempt to accommodate won’t guarantee that employers stay out of court, but it’s a start.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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