07-13-09
Piercing Predicament: Accommodate or Terminate?
An interesting First Circuit Court of Appeals case recently addressed whether an employer must allow an employee to display her facial piercing at work based on her claim of religious protection. What religion, you ask? The Church of Body Modification, of course. That’s right, according to the employee, as a card-carrying member of the Church of Body Modification, she was required to display all of her piercings at all times, including her eyebrow piercing. As such, she claimed that she was not required to obey company dress code rules that expressly prohibit facial piercing. But, the First Circuit determined that the employer could not reasonably accommodate the plaintiff without suffering undue hardship and granted it summary judgment. The employee’s termination was upheld.
The case is Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004). Costco terminated Ms. Cloutier, a cashier, after she refused to comply with its dress code prohibiting facial piercings. The employee, a member of the Church of Body of Modification with an eyebrow piercing, commenced litigation against Costco on the basis of religious discrimination in violation of federal and state law. In pertinent part, Title VII of the Civil Rights Act of 1964 and applicable state law prohibit discrimination on the basis of religion, and require an employer to provide a “reasonable accommodation” where a conflict exists between a sincere religious belief and a condition of employment unless such accommodation would constitute an undue hardship.
The First Circuit avoided the admittedly “thorny” (no pun intended, Church of Body Modification) issue of determining whether the employee’s piercing constituted a “sincere” religious belief. The Court assumed without deciding for purposes of its discussion that the employee could establish a bona fide religious practice.
Instead, the Court focused on whether the employer could provide a reasonable accommodation without undue hardship. The Court found that Costco could not provide any reasonable accommodation acceptable to plaintiff without undue hardship because the employee would only accept an accommodation that would allow her to display her piercing. Employers have a legitimate interest in presenting a reasonably professional appearing workforce to its customers. It is within Costco’s discretion to make a determination that facial piercings detract from its professional image.
The First Circuit found that Costco would suffer undue hardship in its loss of control over its public image if required to permit plaintiff to display her facial piercing. Because the only acceptable accommodation to plaintiff was to be permitted to display her facial piercing, the Court determined that Costco could not reasonably accommodate plaintiff without suffering undue hardship. As such, the Court granted Costco’s motion for summary judgment and dismissed plaintiff’s claims.
For more information, contact Kelly Delaney.
The case is Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004). Costco terminated Ms. Cloutier, a cashier, after she refused to comply with its dress code prohibiting facial piercings. The employee, a member of the Church of Body of Modification with an eyebrow piercing, commenced litigation against Costco on the basis of religious discrimination in violation of federal and state law. In pertinent part, Title VII of the Civil Rights Act of 1964 and applicable state law prohibit discrimination on the basis of religion, and require an employer to provide a “reasonable accommodation” where a conflict exists between a sincere religious belief and a condition of employment unless such accommodation would constitute an undue hardship.
The First Circuit avoided the admittedly “thorny” (no pun intended, Church of Body Modification) issue of determining whether the employee’s piercing constituted a “sincere” religious belief. The Court assumed without deciding for purposes of its discussion that the employee could establish a bona fide religious practice.
Instead, the Court focused on whether the employer could provide a reasonable accommodation without undue hardship. The Court found that Costco could not provide any reasonable accommodation acceptable to plaintiff without undue hardship because the employee would only accept an accommodation that would allow her to display her piercing. Employers have a legitimate interest in presenting a reasonably professional appearing workforce to its customers. It is within Costco’s discretion to make a determination that facial piercings detract from its professional image.
The First Circuit found that Costco would suffer undue hardship in its loss of control over its public image if required to permit plaintiff to display her facial piercing. Because the only acceptable accommodation to plaintiff was to be permitted to display her facial piercing, the Court determined that Costco could not reasonably accommodate plaintiff without suffering undue hardship. As such, the Court granted Costco’s motion for summary judgment and dismissed plaintiff’s claims.
For more information, contact Kelly Delaney.
