Religious Garments and Jewellery at Work A recent decision of the US Supreme Court has found that Abercrombie & Fitch had discriminated against a job applicant by refusing to hire her on the basis that her head scarf or “hijab” clashed with its “classic East Coast collegiate style” dress code. This high profile case has led to a number of questions from Irish based employers on the issue of employees wearing religious garments and jewellery to work. The Abercrombie issue arose after a job applicant wore her hijab to an interview which the interviewer assumed the applicant wore for religious reasons. Staff members in that company were advised not to ask applicants about their religion. The US Equal Employment Opportunity Commission (EEOC) claimed that in not asking, the company had violated equality guidelines and essentially created a loophole allowing for religious discrimination. In an 8-1 vote, The Supreme Court ruled that Abercrombie should have asked the applicant or at least told her of the ban so she had an opportunity to volunteer the information at which point the company and the applicant could have discussed how the headscarf might be accommodated in the workplace. What’s the Position in Ireland? Cases of discrimination or unfair dismissal on the grounds of the wearing religious clothing are quite rare in Ireland and as such there is no precedent or case law to highlight what way the Irish courts or tribunals view this matter. The Employment Equality Acts do specifically state that discrimination on the grounds of religion is prohibited and one can safely assert that the wearing of religious garments or jewellery would come under this definition. Therefore, if an employer were to forbid the wearing of religious garments then the employer would be required to objectively justify the reasons behind that rule. The UK perspective Given the lack of Irish cases in this area, it is quite useful to look at how the matter has been addressed in the UK. In the case of Azmi -v- Kirklees Metropolitan Borough Council [2007] IRLR 434, the UK EAT considered the fairness of a dismissal of British Muslim teacher won the basis she refused to remove her religious veil (or ‘niqab’) in the presence of male colleagues. The school argued that the veil meant that children could not respond effectively to her teaching. The UK EAT found that she had not been discriminated against on the religious ground on the basis that removing the veil was necessary for her to perform her teaching job effectively and also the EAT were satisfied that a non-Muslim person would have been similarly instructed to remove a veil from their face had they worn one also. Learning points It is difficult to determine with any great certainty what an Irish tribunal would determine if faced with a similar scenario. In the US, Abercrombie were deemed to have discriminated against a job applicant on the basis that the company had a positive duty under US law to reasonably accommodate religious practices. In the UK, however, it was found that the school had not discriminated against an employee for demanding she remove her veil as the school would have applied this policy rigidly to every job applicant and employee, irrespective of religion. However, these two cases do provide some useful guidance for employers in Ireland if considering a ban on certain garments. If an employer was to impose a dress code, they would have to justify the reason for doing so and make sure that they are not indirectly discriminating against an employee. The following reasons might be able to justify such a policy:
- The impact such garments have on an employee’s ability to perform their work duties.
- Any health and safety risk associated with such garments.
- Any industry rules in terms of protective equipment.
For example, in the UK Azmi case, the decision to dismiss was justified as it was concluded that the face-veil was obstructing the employee’s ability to communicate effectively with students and therefore inhibited her abilities to perform her duties appropriately. However, in the Abercrombie case in the US, there was no indication that the wearing of the headscarf would inhibit job performance as a sales assistant. Therefore, an employer will need a justifiable reason connected to a real business need, a genuine role requirement, or a health and safety requirement. If you have any questions on this article then please do not hesitate to contact our 24 Hour Advice Service on 01 855 50 50.
