Employee States a Claim for Religious Discrimination for Refusing to Remove Nose Ring

05/06/2009 / Bruce J. Douglas and Chris M. Heffelbower

Many employers have dress codes and grooming policies in order to maintain control over their public image. Employers have a legitimate interest in presenting a certain image and a legitimate interest in prohibiting certain dress items for safety reasons. However, this legitimate interest is tempered by discrimination laws. In particular, employers can get into trouble for discriminating based upon religion when they strictly enforce dress codes and grooming policies.

Employees have claimed religious discrimination when an employer has attempted to enforce “no facial jewelry” policies and other dress code policies. A federal court in Florida recently denied the employer’s motion for summary judgment and determined that an employee may continue with her religious discrimination claim against her employer when the employer fired her after she refused to remove her nose ring. EEOC v. Papin Enters., Inc., et al, M.D. Fla., No. 6:07-cv-01548, 4/7/09.

In this case, the employee was an assistant manager at a Subway franchise. She was fired when she refused to remove her nose ring, which was in violation of the company’s policy against facial jewelry. The employee informed the company that her religious beliefs required that she wear the nose ring. The company attempted to reasonably accommodate the employee by (1) allowing her to cover up the nose ring with a flesh colored Band-Aid; or (2) allowing her to leave the store each month when the Subway inspector inspected the store for compliance with company policy. The court ordered that the case should proceed with trial so that a jury could determine whether the company discriminated against the employee based upon her religion.

However, it is important note that these cases turn on their specific facts. In another case, the result was different based upon the facts. In Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004), a Costco employee, who was a member of the Church of Body Modification, refused to remove her eyebrow piercing, in violation of Costco’s no-facial jewelry policy. The court found in that case that the employer could not accommodate the employee without undue hardship because Costco had a legitimate interest in maintaining grooming standards and that preventing Costco from enforcing those standards would cause it to lose control over its public image.

In addition, some cities have ordinances prohibiting discrimination in employment based upon physical appearance. The City of Madison, Wisconsin has an ordinance which prohibits discrimination based upon “the outward appearance of any person. …” Ordinances such as these may protect some employees who wish to wear nose rings and other facial jewelry.

What does this all mean for employers? Employers may continue to maintain dress and grooming policies, including policies prohibiting facial jewelry. However, those policies cannot be strictly enforced in all cases. If an employee refuses to comply with the policies for sincerely held religious beliefs, an employer must determine if it can reasonably accommodate the employee’s request, which may mean modifying the policies for that employee.