There has been considerable consternation and confusion about the Disneyland employee who charges that Disney discriminated against her because of her religion. It may seem to be a simple issue but federal discrimination laws on when an employer must accommodate a religious custom are exceedingly complex.
Imane Boudlal, the employee, works at the Grand Californian Hotel’s Storytellers Café as a hostess. Storytellers Café is an all you can eat buffet style Character breakfast with Chip & Dale and Pluto. Like the name implies, the café “celebrates the age-old tradition of storytelling,” according to the Disney website.
Image: Storytellers Cafe, courtesy of www.wdwinfo.com
Ms. Boudlal is from Morocco and is of the Muslim faith. Her attorney stated she started wearing a hijab, an Islamic headscarf, outside of work several months ago as she became more observant in her faith. On Wednesday, August 18, 2010, Ms. Boudlal filed a charge with the United States Equal Employment Opportunity Commission alleging that Disney discriminated against her by refusing to let her wear a hijab at work.
Before going into the details, it will help to understand a little something about religious discrimination claims. In one publication, Boudlal said, “I realized the Constitution tells me I can be Muslim, and I can wear the head scarf. Who is Disney to tell me I cannot?” But the U.S. Constitution does not require private employers such as Disney to recognize an employee’s religious beliefs.
Still, other laws (both federal and Californian) impose obligations on private employers. While federal law prohibits firing an employee because they are Muslim (for example), it also defines “religion” to include “all aspects of religious observance and practice, as well as belief” and requires an employer to prove it can’t “reasonably accommodate” an employee’s “religion” (remember the definition) without “undue hardship” on the employer. Undue hardship is a concept that courts struggle to define. A 1977 Supreme Court decision said it means more than a minimal burden on the employer. The EEOC says to consider cost and the number of employees who will need accommodating. It also says certain “hardships” are off limits, such as those based upon the “discriminatory preferences of others” which includes co-workers or customers.
Disney insists that its employees comply with the “Disney Look” which explains that: “No matter where you work or what your role is, anytime you are in a public area, you are ‘on stage.’” Regarding “headwear,” it says, “The only hats and sun visors that may be worn are those issued by Costuming as part of the costume.” The policy also lets employees request exceptions for religious beliefs. In Disney’s view, the “Disney Look” is a key component in delivering the magic of Disneyland and Walt Disney World:
The Disney Look started with Walt Disney’s idea that the “Cast Members” at Disneyland Park were to play an important role in bringing Guests into a fantasy world, and that the Cast would be a large part of the show. Walt had the vision that Cast Members would appear friendly, approachable, and knowledgeable. The Disney Look guaranteed that the Cast did not distract from the show or become the show. Rather, these guidelines were put in place to maintain the consistency of the appearance of the Cast that the Guests have come to love and appreciate over the years.
The requirement to accommodate the employee’s religious observances is what makes this situation dicey for Disney because this is a “dress code” issue and the courts and the EEOC don’t always agree on what amounts to a reasonable accommodation when a dress code is involved. The EEOC all but insists that an employer must modify a dress code to make a religious accommodation unless the dress code is based upon safety or security concerns. As one EEOC attorney told a newspaper: “It is harder to show that it’s an undue hardship when you talk about dress codes.”
Federal court decisions are hardly uniform. In one lawsuit against Red Robin, the court refused to dismiss a lawsuit by a server who worshiped the ancient Egyptian sun god Ra. His religious beliefs made it a sin to intentionally cover his religious tattoos while Red Robin’s appearance policy prohibits visible tattoos. (Red Robin later settled for $150,000 and agreed to modify its policies.) But in another case, however, Costco did not have to accommodate an employee with facial piercings because they would detract from the neat clean professional image it sought to project.
Even the EEOC, however, recognizes that there “may be circumstances in which allowing a particular exception to an employer’s dress and grooming policy would pose an undue hardship” though, as noted, it cautions an employer’s “image” cannot be based on its customers’ religious biases or fears.
Odds are, Disney will first assert that the Disney Look is more than simply a “dress code.” The Disney Look, which is decades old, isn’t based on the religious biases of its visitors but on the desire to ensure cast members don’t distract from the magical experience each guest expects. But that is not all Disney will argue. Disney will likely put on evidence about the effect of having to make other changes to the Disney Look if other employees were to demand a religious accommodation.
Disney will also say it tried to accommodate Boudlal by temporarily offering her a job as a room service cashier while it worked on a more permanent solution. I doubt we know about all the offers Disney has made. Some were to work in other jobs, presumably out of the view of the public. Boudlal rejected one which would have let her wear a head scarf under a hat. Her attorney said it did not preserve “her Muslim identity as well as her human dignity.” That is a telling response because federal law doesn’t require employers to preserving “identities” or “dignity” (assuming, of course, that Disney’s offer didn’t do either). For instance, there was a decision several years ago where a Dillard’s employee insisted on taking a religious pilgrimage during the holiday sales season. The court held the employer would probably have had to let her take time off for the pilgrimage but did not have to let her go at the time she insisted because the timing of the trip was a personal preference and was not religiously mandated. So, that Boudlal thinks Disney’s offer makes her look undignified isn’t the issue. This was Storytellers’ after all, not the much more formal Napa Rose. Disney has also released a drawing of alternative headware that Boudlal refused to wear.
Image: The headwear Disney proposed for Boudlal, photo courtesy of The Orange County Register
The reasonableness of Disney’s job transfer offers could turn on whether modifying the Disney Look in a manner unacceptable to Disney is an undue hardship. While Disney has offered to transfer Boudlal to a position where she could wear the hijab, the EEOC will take the position that transferring a Muslim employee to a non-customer service position because she refuses to stop wearing a hijab violates federal law unless the employer can show wearing the hijab in the public position is an undue hardship. So, transferring an employee out of the public view is not always going to be a legally acceptable solution.
A number of bloggers have emphasized that Boudlal was aware of the Disney Look when she started work at Disneyland and worked for two years before insisting on wearing the hijab. By itself, this does not provide Disney with a certain defense. The EEOC explains that employer must recognize that an employee’s religious beliefs and practices evolve over time and the employer has a continuous obligation to accommodate them. This, along with the years-long contract dispute with the hotel union, might let Disney convince a jury that Boudlal is a pawn and does not really hold a sincere religious belief.
Given the standards, religious accommodation claims are usually difficult to get tossed prior to trial; most go to the jury or settle. Perhaps this will eventually settle. If it goes to a jury, they won’t be concerned with the complex legal standards outlined above but with whether Disney proposed a reasonable accommodation in modifying the uniform requirements as it did (or will do) and in offering to transfer Boudlal to another position.
Finally, don’t take this as saying Boudlal should or will win or that she is “right” and Disney “wrong.” I’m just explaining some of the legal issues involved. Also, I don’t speak for Disney, don’t represent any Disney company, and have not spoken to any Disney employee about the lawsuit. I’ve also tried to avoid legal wonk so some of my descriptions of legal concepts are likely to be less than exact.