Q We now have a female Muslim applicant for a bench
position who wears a head scarf and does not approve of wearing pants,
but must wear long sleeves here. While our dress code does not
specifically address head scarves, its wording can be interpreted as
discouraging them; and the code does require scrubs with short sleeves.
Can we require that she dress in the same manner as the rest of the lab
employees?
A As the American workforce grows more diverse, this
question becomes more relevant. The answer tends to be somewhat
fact-specific, but an increasing body of opinion — and of law — outlines
a few general considerations. Paramount is that employment
discrimination based on religious belief is expressly and vigorously
prohibited. That does not mean that all religious practices must be
accommodated in the workplace, but it does mean that decisions made
about such matters must be based on defensible workplace practices and
concerns. Religious opinions or preferences may not play a role.
This also means that if justifiable accommodation for
religious practice is made for one group, similar adjustments — both in
type and degree — must be made for others. If Jewish employees are
permitted to take time for High Holy Days, similar latitude must be
given to those of other faiths for significant religious holidays. If
Muslim employees are given time during the day for religious devotions,
so must those of other religions. Adapting such needs with scheduled
breaks is reasonable, but recognized workplace needs (i.e., emergencies,
shifts in workloads) may supersede individual requests.
Regardless of religious concerns, workplace standards
should be enforced. Generally, such standards are based on the health
and safety of the work environment and, in hospitals, on the patients’
health and safety. In manufacturing plants, prohibiting loose clothing
is based on the concern that it may be caught in machinery and cause
injury to the wearer. Requiring employees to wear uniforms for a
professional appearance has usually been upheld as a sound business
concern but may require compromise for general standards of modesty.
Determining whether or not attire presents a patient-care hazard
requires hard data rather than individual or vague impressions.
Requiring scrubs is typically out of concern for technologists’ comfort
as well as to provide a professional appearance. If a clear and
overriding health or safety concern does not exist that would mitigate
against modifying that standard, you may be best advised to comply with
an employee’s modesty concerns by permitting a long skirt instead of
scrub pants.
Almost without exception, the right of the employee to wear religious clothing has been upheld.
Arguing against a head covering from health and
safety standpoints is hard, especially when many areas in the hospital
require that hair be covered for exactly those reasons. Barring physical
or health risk engendered by your prospective employee’s head scarf,
chances are that you cannot and should not prevent her from wearing it.
A number of lawsuits have been brought over just this issue; defendants
range from schools to jails to McDonald’s. Almost without exception, the
right of the employee to wear religious clothing has been upheld.
Moreover, some Muslim women with healthcare jobs have complained that
they were welcomed as job applicants until they appeared in person
wearing head coverings — indicating that some employers are
discriminating on the basis of religious attire, if not belief. Given
that legal environment, being scrupulous about fairly evaluating both
unfamiliar requests for modification and the applicants making them is
critical.
Unless a verifiable business or safety reason for
prohibiting head scarves exists, be prepared to accommodate this
employee. You might work with her and HR to ensure that people in the
workplace understand her and why she chooses to wear a head scarf;
welcome her with a minimum of fuss. Here also is an opportunity to
explore ways in which hospital and lab prepare to provide healthcare to
patients of different cultures, beliefs, and sensitivities. Many
observant, religious patients are reluctant to be cared for or even
touched by the opposite sex. In Patient Centered Health Care for
Muslin Women in the United States, Fauza Lodhi, MD, recounts the
story of a Muslim woman who repeatedly left the hospital lab until she
found a female on duty to draw her blood — never indicating to the lab
staff why she left (www.uic.edu/depts/mcfp/FamilyMedWeb.pdf).
If you hire this applicant, ask her how her entry into your
workplace could be made comfortable. Be straightforward about your
confidence in her ability to do the job, and be clear to other employees
in your expectation that she will be treated as a respected and valued
colleague.
Barbara Harty-Golder is a
pathologist-attorney consultant in Chattanooga, TN. She maintains a law
practice with a special interest in medical law. She writes and lectures
extensively on healthcare law, risk management, and human resource
management.
MLO’s
“Liability and the Lab” is intended to provide risk management and human
resource management education; it is not intended to provide specific
legal advice. If you require legal advice, the services of an attorney
should be sought. Dr. Harty-Golder welcomes your questions, which can be
sent to her at
[email protected]. Unless
otherwise noted as “confidential” by readers, all queries will be
considered for publication without further notice to them. Names,
institution, city, and state will be removed before publication.
