Picture this: You've issued an order prohibiting the wearing of body-piercing jewelry while on duty. A member of your management team and one of your firefighters pay you a visit. The firefighter is wearing an eyebrow ring, and says he doesn't intend to comply with your order because his eyebrow ring is worn as a sign of his faith.

“What faith is that?” you ask.

“The Church of Body Modification,” he responds.

“Say what?” you query.

“It's an interfaith church whose members practice an assortment of ancient body modification rites, which, we believe, are essential to our spirituality,” he says.

You lean back in your chair, thinking about what you'll do next. By the way, while you're thinking, you check out the Church of Body Modification Web site at www.uscobm.com.

In the case of Kimberly Cloutier, an eyebrow ring — wearing member of the Church of Body Modification who refused to remove her eyebrow ring on religious-belief grounds, her boss at Costco Wholesale didn't think for long. Costco prohibited the wearing of body-piercing devices, so he fired her. She responded with an Equal Employment Opportunity Commission complaint, and the EEOC determined that Costco had, in fact, interfered with her exercise of religious belief.

Americans take their religious freedom seriously. The First Amendment to the U.S. Constitution begins with the phrase, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Title VII of the Civil Rights Act of 1964 places discrimination on the basis of religion in the same category as discrimination on the basis of race, national origin and gender.

In 1972, the Civil Rights Act was amended to require employers to provide “reasonable accommodation” of an employee's religious beliefs: “The term ‘religion’ includes all aspects of religious observance and practice as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.”

The EEOC has translated the language of Title VII into an “enforcement” definition of “religion” that sets the following standards: “[Religion is defined as] … moral or ethical beliefs as to what is right or wrong which are sincerely held with the strength of traditional religious views…. [T]he fact that no religious belief groups espouse such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee. The phrase ‘religious practice,’ as used in these guidelines includes both religious observances and practices.…” (29 Code of Federal Regulations § 1605.1)

As employers — and courts — have found, these definitions are hard to pin down. You're probably thinking about that now, as you wonder how you'll respond to your eyebrow-pierced firefighter.

It's helpful to divide religion-in-the-workplace issues into two categories:

• Does the case really involve religion, and/or
• Does accommodation of that employee's practice impose an “undue hardship” on the employer?

The first and most difficult test is whether the issue raised by the employee really involves “religion” in the sense of Title VII. In enforcement of Title VII cases, courts distinguish between activities that are a part of (or required by) that religion and activities that are “preferences,” or are encouraged (but not required) by a religion.

In the case of your pierced-eyebrow firefighter, you might ask whether the Church of Body Modification requires the wearing of a pierced-eyebrow ring at all times by its adherents, or whether wearing an eyebrow ring at work is a preference of Church of Body Modification members. If you're lucky, the firefighter will answer, “No, it's not required, but it's my preference.” At that point, as far as the law is concerned, your firefighter is not protected by the Constitution or by Title VII, and it's probably time for him to make a choice.

In reality, the requirement-versus-preference call is difficult to make, and it quite often results in an EEOC complaint or lawsuit. Interestingly enough, a lot of employers fall into that trap. They focus on what they perceive as a “religious legitimacy” issue, forgetting (or not knowing) that the employer's perception of the legitimacy of the “observance [or] practice” is not the point. Here's how the “legitimacy fallacy” would play out in your conversation with your eyebrow ring — wearing firefighter:

“Church of Body Modification? Give me a break,” you say as you straighten up in your chair. “Where's your church? Does it have a Sunday morning TV show? What's your minister's name?”

“None of that matters,” says your firefighter. “Besides,” he adds, “I know my rights. What you think about my religious beliefs is irrelevant. What's important is what I think about them.”

“Sounds like a scam to me,” you respond. “Sounds like a mail-order church that exists to cover your personal preference for body-piercing jewelry. It's time for you to make a choice.”

Judges really hate to see you and your firefighter coming in to argue the legitimacy of his religious beliefs. As one court put it, such cases “… require the courts to decide whether a religious practice is or is not required by the tenets of the religion. We find such a judicial determination to be irreconcilable with the warning issued by the Supreme Court [that] … ‘It is no business of courts to say … what is a religious practice or activity.’” (Redmond v. GAF Corporation, 574 F2d 897, 900 (Seventh Circuit Court of Appeals, 1978) (Emphasis added). From time to time courts will take on a requirement-versus-preference case — a California court recently decided that vegetarianism was not a religion — but those cases are the exception.

The judges who decided the Redmond case would probably tell you that, since your opinion of the legitimacy of your firefighter's religious practice is largely irrelevant, you should focus on the impact of his expression of that belief on the workplace. This is where the undue hardship test comes into play. While the undue hardship test is much easier to work with than the requirement-versus-preference test, the undue hardship test still requires careful attention.

In Heller v. EBB Auto Co., 8 F3d 1433 (Ninth Circuit Court of Appeals, 1993), the court said that an employer can meet the “undue hardship” burden of proof by “… showing that either [the religious practice's] impact on co-workers [or customers] or its costs would be more than de minimus.” That's Latin legalese for minimal.

Here are some examples from case law of questions that can help you assess whether a workplace religious practice creates an undue hardship on your department:

• Will accommodating the practice cost the employer money?
• Will it interfere with the employee's ability to do the needed work?
• Will it cause safety problems?
• Is a uniform appearance or an actual uniform an important public-relations or public-confidence consideration?
• Will the practice offend other employees?
• Will it actually interfere with other employees' work or work environment?

A key point in answering these questions is to remember that courts are interested in what will happen or what is reasonably likely to happen. They're generally not interested in what might happen. A second point is that verifiable safety concerns will meet the undue hardship test most of the time. A third point worth noting is that courts tend to place greater weight on uniform/uniformity-of-appearance issues when the employer is a paramilitary public safety agency.

Generally, the strategy that produces the greatest success in dealing with workplace religious practice, and an undue hardship assessment in particular, is to start by discussing those issues with your employee so that you're as well-informed as you can be about his religious beliefs and how they play out in the workplace.

On your end, that conversation would include these questions, which carefully avoid the legitimacy fallacy:

1. “Tell me a little about the fundamentals of your religious beliefs.”

2. “Is the eyebrow ring something your religion requires you to wear?”

3. “Are there other aspects of your religious beliefs that govern (or suggest) how your beliefs affect your workplace behavior?”

As you discuss these with your employee, ask him to write them down. Examples include:

• Time off for worship.
• Dress issues, such as head coverings or religious medals. Perhaps women are not allowed to wear indecent clothing like slacks.
• Appearance issues, such as beards or eyebrow rings.
• Workplace activities or requirements that violate religious standards. These aren't found frequently in the fire service, but in public-health settings some employees refuse to do work that supports birth control or abortion activities.
• Religious display in the workplace, including pictures or other objects.
• A need to work on “converting” co-workers.

The next step is to ask your firefighter to tell you what he thinks will represent reasonable accommodation of his religious beliefs. The undue hardships referenced above can help you frame your question, but it's important for the firefighter to tell you what he thinks reasonable accommodations might be.

When you've provided your firefighter with the opportunity to describe and discuss how his religious beliefs intersect with the workplace, as well as the opportunity to talk about what he thinks might work as ways for your department to reasonably accommodate his expression of religious belief in the workplace, you have established an excellent legal foundation for what happens next. In fact, courts expect the undue hardship/reasonable accommodation process to begin with an employer-employee discussion of the religious-expression issues, and possible ways to accommodate those issues in the workplace, not with immediate disciplinary action

It's possible that this accommodation conversation will produce a solution to your problem. If not, you've formed the basis for the next part of the conversation — your accommodation suggestions. And if the firefighter has written down how his religious beliefs play out in the workplace and how he thinks they can be accommodated, ask for a copy. Keep it.

If your firefighter's accommodation suggestions don't work, propose alternatives. Here are a couple of examples:

• If your firefighter must have religious objects in the workplace, they could be placed or hung on the inside of his locker or locker door.
• If your firefighter must wear some form of religious head covering, it could be worn inside the station and then removed for activities outside the station.

If you and the firefighter can't agree on an accommodation, perform the undue hardship analysis and write down those points of analysis. As you do, keep in mind that the courts expect a fair-and-square analysis. For example, if your firefighter offers to remove a religious head covering for out-of-station activities, and you don't agree, prepare to answer the following variations of this basic question:

If the firefighter wore his or her religious head-covering only in and around the station,

• Would it cost the department any money? If so, how and why?
• Would it interfere with his ability to do station duties? If so, which duty and why?
• Are there any public-relations or public-confidence issues raised? If so, which issues and why?
• Would it offend other firefighters? If so, how?
• Would it interfere with the work environment of other firefighters in the station? If so, how?
• Would it raise any safety issues? If so, what safety concerns does it raise, and why?

When it comes to protected rights like religious belief, the courts don't care much for the “because I said so” system of management. Establishing undue hardship takes some work.

It's important to note that courts dealing with a religious-discrimination complaint will look for inconsistency on the part of an employer. In Fraternal Order of Police v. City of Newark, 170 F3d 359 (Third U.S. Circuit Court of Appeals, 1999), the court noted that, because the Newark Police Department gave an Americans with Disabilities Act “reasonable-accommodation” exemption from the department's no-beard rule to police officers who suffered from folliculitis barbae (a skin disease caused when curly beard hairs become ingrown), there was no evidence that allowing an officer to wear a beard for religious reasons caused any additional undue hardship for the police department.

When there's a conflict between safety, job duties, proselytizing (trying to convert or convince co-workers that they should adopt or follow a particular religious belief), and (in public safety settings) generally reasonable uniform requirements, those complaints tend to be decided in favor of the employer. Suits involving low-cost (or no-cost) scheduling accommodations (a worker who proposes swapping shifts so he or she can attend a religious activity, or a worker who requests a transfer so he or she can work a shift that allows attendance at those activities) tend to be decided in favor of employees, sometimes even in cases where the request is inconsistent with the terms of a collective bargaining agreement's transfer provisions. Suits where the employee proposes a scheduling accommodation that involves time off without pay, or overtime, tend to be decided in favor of the employer.

When chief fire officers think of Title VII of the Civil Rights Act of 1964, they probably think most often of racial or sexual harassment discrimination. Religious-discrimination cases are becoming increasingly common, and can be much more complex than other forms of discrimination.

What's the rest of the story on Kimberly Cloutier and Costco? On Oct. 16, 2002, she sued Costco for $2 million for discrimination on the basis of her religious belief. As of this writing, the lawsuit has not been resolved.

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John Rukavina is director of public safety for Wake County, N.C., and holds a law degree from the University of Minnesota School of Law. He was a 1993 FEMA Fellow at Harvard University's Kennedy School of Government and is a graduate of the National Fire Academy's Executive Fire Officer Program. He has taught for the National Fire Academy, at IAFC conferences and for the Institutes of Government at the universities of North Carolina and Georgia.

Sikh officer versus ‘no turbans’ policy

On Tuesday, March 4, at 11 a.m. Amric Singh Rathour, a former officer of the New York City Police Department, will hold a press briefing at the Interfaith Center of New York, located at 40 East 30th St. (near Park Avenue).

The purpose of the press briefing will be to announce the filing of a federal civil rights lawsuit against Police Commissioner Raymond W. Kelly and the New York City Police Department in the United States District Court for the Southern District of New York. Rathour was fired by the NYPD in August 2001, after refusing direct orders to remove his turban and trim his beard, which are both required by his religion. His lawsuit will charge that the NYPD'S turban prohibition constitutes unlawful employment discrimination. The lawsuit will be filed the morning of March 4 and copies of the suit will be made available to members of the media immediately thereafter.

At the briefing, Rathour will be joined by a contingent of Sikh police officers from London and Toronto, as well as members of various inter-faith religious communities. Following the reading of brief written statements from Rathour and other Sikh police officers, Rathour and the other invited guests will be available to answer questions from members of the press about the lawsuit.

“Amric's lawsuit, at long last, will give the Sikh community its day in Court. If Sikh officers in other countries are serving honorably, how is New York City any different?” said Ravinder Singh Bhalla, the attorney retained by the Sikh Coalition to represent Rathour.

“The Sikh community is outraged by the lack of support from the New York Police Department,” said Harpreet Singh, director of community relations at the Sikh Coalition. “Amric wants nothing more than to serve, just as any American would. Yet we have found that the NYPD is not willing to reasonably accommodate the religious practices of some of its own employees. We hope this lawsuit sends the message that as a community, and as Americans, we will not accept this situation and will do everything we can to obtain justice.”
— Sikh Coalition press release