Religious Accommodation Under Title VII: Is It The Happiest Place On Earth If You Can’t Wear Your Hijab?

| Andrew P. Torrez

We continue our examination of the many things today's CEOs need to keep in mind -- things they may not have taught in business school.  Today, it's the sometimes hot-button issue of the role of religion in the workplace, this time with a look at a recently-filed lawsuit that’s drawn considerable public attention.  (See also here and here.)

Now, most businesses have some sort of dress code, including Zuckerman Spaeder.  When a company’s employees routinely interact with customers and the public – say, a retail store or restaurant – many employers go beyond a simple dress code in an effort to establish a company-wide uniform “look.”  Perhaps no place on earth goes quite as far as Disneyland, where employees are considered “cast members” and – even when not dressed as a giant cartoon mouse – are asked to reflect certain “themes” throughout the park.

So what happens when one of those “cast members,” a young Muslim woman working as a hostess at a Disney café, requests the right to wear a hijab, the traditional Muslim headscarf?

Well, according to a lawsuit filed yesterday by Imane Boudlal against the Walt Disney Corporation, Disney said “no,” arguing that Boudlal’s hijab would violate the company’s “look” at the Storytellers Café, a 19th-century American themed buffet located in the Disneyland Grand Californian Hotel.

Boudlal alleges that Disney informed her that wearing the hijab would “negatively affect patrons’ experiences” at the Storytellers Café.  Complaint ¶ 4.  According to Boudlal, she was given “an ultimatum” by Disney if she continued to wear the hijab:  she could either move to a position in the back of the restaurant, out of the view of customers, or she could wear oversized novelty hats that would cover the hijab – hats that, Boudlal claims, no other employee was required to wear.  When Boudlal refused to do either, she says that Disney fired her.  Id. ¶ 5.  Boudlal seeks vindication under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which prohibits discrimination on the basis of race color, religion, sex, or national origin, id. § 2000e-2(a).

Title VII further defines “religion” to require an employer to make reasonable accommodations for “all aspects of religious observance and practice, as well as belief” unless the employer demonstrates that such accommodations would constitute an “undue hardship” on the business.  Id. § 2000e(j).

(Boudlal also raises additional claims in her lawsuit that are beyond the scope of this article – claims that coworkers called her “camel,” “terrorist,” and, somewhat bizarrely, “Kunta Kinte” (after the slave from Roots), and made other anti-Muslim comments to her.  Complaint ¶¶ 16-17.  Boudlal’s lawsuit also raises state law claims that we do not address here.)

Disney spokesperson Suzi Brown responded as follows:

We met with Ms. Boudlal on Saturday and presented her with several options. She asked that the costume be altered. Those alterations were made and a modified costume was presented to her that meets our costuming guidelines and which we believe provides an accommodation of her religious beliefs. We also provided four different roles that she could transition to that would allow her to wear her own hijab. She has twice chosen to reject all of the options that we've presented.

Disney isn’t the first company to come under fire for having a “look” policy that would potentially prohibit employees from complying with their religious beliefs that they are required to wear particular garb.  Indeed, the EEOC has repeatedly brought lawsuits against clothing retailer Abercrombie & Fitch on behalf of Muslims who claim that they were not hired after wearing a hijab to their employment interview.  According to the EEOC, both Samantha Elauf and Halla Banafa were marked as “not Abercrombie look” during the interview for wearing hijabs.  A&F’s “Look Policy” requires its sales associates to wear clothing “consistent with the Abercrombie brand” and specifically prohibits hats, other headcoverings, and clothes that are black.  (Unlike A&F, Disney claims that it offered Boudlal four other positions at Disneyland where she could wear her own hijab.) 

As these lawsuits remain pending, we have little guidance as to whether requiring an employer to relax its “look policy” would constitute the kind of “undue hardship” that would otherwise exempt an employer from the accommodation requirements of Title VII.  We’ll continue to follow and report on these sorts of cases.