In September 2003, I discussed accommodation of religious practices in the firehouse, using two pending religious-discrimination cases as a framework. The first case involved a Costco worker in Massachusetts who refused to remove an eyebrow ring while at work, in violation of Costco's employment rule prohibiting the wearing of body-piercing hardware while at work. The second case was that of two NYPD traffic enforcement agents, one of whom was fired and the second of whom resigned for refusing to give up the turbans religious beliefs require them to wear when in public settings.

Since that article was published, both cases have been decided. Will either of those decisions make religious-harassment law any clearer for fire service managers?

Body-piercing in the workplace

Citing membership in the Church of Body Modification, Kimberly Cloutier argued that her religious belief required that she wear her eyebrow ring while at work. In spite of a ruling in her favor by the Equal Employment Opportunity Commission, she lost her appeal in the First Circuit Court of Appeals in December 2004.

Cloutier's first stop after the EEOC ruling was in federal district court, where she filed suit against Costco for violation of her rights under Title VII of the Civil Rights Act of 1964, alleging religious harassment.

In federal court, civil-rights cases are a lot like tennis matches. The plaintiff (in this case, Cloutier) “serves” by offering evidence that:

• Her bona fide religious practice conflicted with a Costco employment requirement;

• She brought the practice to Costco's attention; and

• Her religious practice was the basis for her termination.

The defendant, Costco, now has to return the serve, by offering evidence that:

• It offered Cloutier a “reasonable accommodation;” or

• The accommodation proposed by Cloutier would have worked an undue hardship on Costco.

Cloutier then would have to offer evidence that Costco turned down the reasonable accommodation she proposed, or that Costco's undue-hardship assessment was wrong. And the game would go on.

Costco and Cloutier had continued mediation after Cloutier's termination. During that mediation, Costco offered to return Cloutier to work with an accommodation of Cloutier's beliefs by allowing her to cover her eyebrow ring with an adhesive bandage, or to wear a clear plastic “retainer” through her eyebrow piercing while at work. The district court judge ruled that Costco's offer was a “reasonable offer of accommodation.” When Cloutier turned it down, the judge reasoned, Costco was not required to do more (“Title VII does not require Costco to grant Cloutier's preferred accommodation, but merely a reasonable one.”) Cloutier lost.

Cloutier appealed that decision to the First Circuit Court of Appeals. In Kimberly Cloutier v. Costco Wholesale Corp., No. 04-1475 (December 2004), the First Circuit upheld the district court decision but tossed out the district court judge's “offer-of-accommodation” reasoning, in part because that “offer” had been made after Cloutier had been terminated. Costco, the First Circuit ruled, had no duty to accommodate Cloutier in the first place “because it [Costco] could not do so without undue hardship.”

The court's undue-hardship ruling was based on the following conclusions:

1. Prior to her termination, Cloutier had proposed only one accommodation to Costco, that she be given an “outright exemption” from Costco's body-piercing-jewelry policy.

2. Costco “has a legitimate interest in presenting a work force to its customers that is, at least in Costco's eyes, reasonably professional in appearance.”

3. In spite of Cloutier's arguments that Costco's hardship was “hypothetical” (no customer had complained, and there was no evidence that her eyebrow ring affected her performance), a total exemption from Costco's “legitimate” professional-appearance policy would have constituted an undue hardship.

Citing cases that involved employer regulation of facial hair, the court noted that “[c]ourts have long recognized the importance of personal-appearance regulations, even in the face of Title VII challenges.… ‘As long as the employer's … requirement is not directed at religion, enforcing the policy is not an unlawful discriminatory practice.’”

What lessons should firefighters and fire officers take from this case? It's tempting to take Cloutier as a blanket endorsement of any employer regulation of on-duty religious expression, as long as the regulation is based on a “professional-appearance” standard that, in effect, treats all religious belief and expression equally.

The court put a lot of weight on Cloutier's last-best-offer approach to accommodation, which indicates that an employee who asks for a complete exemption from a workplace policy has a heavier burden than the employee who is interested in negotiating an accommodation, which suggests that an employee's complete-exemption strategy might not always be a winner. But the court also put a lot of weight on a weaker argument — the fact that Costco had no evidence of customer complaint about Cloutier's eyebrow ring, or that Cloutier's performance suffered because of the eyebrow ring. Costco's “undue hardship” was, for the most part, hypothetical.

Given this decision, fire departments would be in a better position than Costco to promulgate and enforce a ban of wearing visible body-piercing jewelry while on duty in light of judicial deference to regulation of appearance in a public safety setting. But no chief fire officer should shortcut the case-by-case assessment of a request for accommodation that Title VII expects.

Turbans on duty

Jasjit Singh and Amrik Singh filed a complaint with the New York City Commission on Human Rights and the federal district court for New York alleging violation of their religious rights. The commission ruled in favor of Jasjit Singh and Amril Singh last summer.

NYPD Traffic Enforcement Agent Jasjit Singh had filed a formal complaint against NYPD alleging that, in spite of several requests that he be allowed to wear the turban that his Sikh religious beliefs required while he was on duty, NYPD refused.

Although Jasjit Singh cited a New York City anti-discrimination ordinance rather than Title VII, New York's ordinance is built around the same reasonable accommodation/undue hardship model as federal law, so the lessons of this case are still useful.

The commission decided in favor of Jasjit Singh. The facts the commission found are worth comment.

1. Although Jasjit Singh submitted “numerous” oral and written requests, those requests were “categorically denied without any dialog or attempt to reach a middle ground.” Lesson: No evidence of even an attempt to accommodate is a lousy strategy, even for a public safety employer.

2. Only at the hearing did NYPD present evidence that “some Sikhs disagree with the need to wear a turban.…” Lessons: Waiting until trial to bring forward arguments that might have supported an accommodation is too late, and pointing out that not every religious practitioner observes the rules in the same way has, in general, been historically ineffective in Title VII cases.

3. “The respondents [NYPD] attempted to argue that varying its uniform requirements to accommodate [Singh's] religious beliefs would create safety and identification issues, raise concerns of public safety, and expose the city to liability; thereby creating an undue hardship. The respondents offered no evidence to justify these arguments.” Lesson: Notwithstanding Cloutier's somewhat casual approach to “hypothetical harm,” going to trial on a Title VII case without at least some evidence of the harm you're predicting is a risky proposition.

4. “The validity of [NYPD's safety and identification concerns] were undermined by [NYPD's] own witness … [who] testified that he has seen Traffic Enforcement Agents on numerous occasions without their hats and had no trouble recognizing them, that Traffic Enforcement Agents are recognizable by their uniforms and not their hats, and further testified regarding the various headgear Traffic Enforcement Agents are permitted to wear, including non-descript leather hats and baseball caps.” Lessons: Don't tell an employee making an accommodation request that the accommodation isn't possible when it's done every day, and don't adopt appearance rules that are enforced in the breach rather than the observance. The NYPD witness's testimony should have been part of accommodation negotiations.

5. “[NYPD's] arguments are belied by evidence of Sikhs [wearing turbans] functioning as law enforcement officers in other jurisdictions without incident.” Lesson: Check with your peers to see what accommodation issues already have been identified and what solutions have already been tested, or as importantly, what solutions and approaches have failed.

I started this section of the column by asking, do either of those decisions make religious-harassment law any clearer for fire service managers? In Cloutier, the answer is probably no. In Singh, the answer is emphatically yes. This case wasn't NYPD's finest hour, though by negative example, it reinforces crucial lessons in successfully dealing with accommodation of religious practice and observance in the workplace.

Sexual harassment training

In past columns, I've written a great length on how important it is for fire service employers to offer formal sexual harassment prevention and response training and to keep individualized records of that training. Such training — when delivered, evaluated and recorded effectively — will help prevent sexual-harassment incidents, and if an incident occurs, it will support an employer's defense that it did something to prevent the incident, and to provide a real (as opposed to paper) process to resolve complaints.

California has taken sexual-harassment prevention/response training a significant step further. As of Jan. 1, California requires employers with 50 or more employees to provide supervisors such training every two years. To avoid those “training” sessions we've all suffered through, where a bored computer operator who knows nothing about sexual harassment prevention and response simply shows employees the same on-screen training program year after year, California's law requires two hours of “interactive” training by persons with knowledge and expertise in the field, including:

• Information and practical guidance on federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment.
• The remedies available to victims of sexual harassment in employment.
• Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.

Although this would be a great opportunity for full employment for lawyers, state officials have already announced that instructors won't have to be lawyers, but they will have to be prepared to document and demonstrate their expertise.

What California has done cuts both ways. It suggests a standard that employers in states outside California can use for delivery of similar training and education — and it initiates the idea that there's now an “industry standard” to which the employer “industry” could be held, or at least compared, in some future courtroom.

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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.

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