One of the best parts of being in America is the freedoms we enjoy. However, at times, personal freedoms can pose challenges for restaurant owners. When a restaurant employer wants to require uniforms, a dress code and grooming standards, some employees claim religious discrimination and entitlement to accommodations. Restaurant employees can claim they are entitled to wear religious headwear, not shave their beards, and openly display tattoos and piercings. What options does the restaurant management have?

A carefully crafted personnel policy based on bona fide health and safety concerns can be adopted for all staff dealing directly with food and the public as long as it is uniformly enforced without exception. If there is a compromise to health and safety, the employer does not need to accommodate an employee’s religious dress or grooming requests. Employers are entitled to promote an environment of discipline, corporate branding and compliance with the highest health and sanitation standards.

The key is that the policy must reasonably be based on health and safety concerns and cannot be a means of indirect discrimination. Thus, if the employer can point to true concerns, it may legally deny the employee’s requested accommodations or may provide an alternative accommodation to the employee. However, a food industry employer must be uniform in its policies. For example, it cannot allow watches and wedding bands but prohibit facial jewelry (nose rings, lip piercings, or eyebrow rings for example). One accommodation that has been suggested by courts is the covering of tattoos or piercings with a bandage or retainer during work.

Notably, religious headwear is more problematic for the restaurant industry. If it keeps hair out of the food, the health and safety concerns are arguably addressed. The more controversial issue is whether the employer can also require the employee to don a uniform headwear on top of, or in addition to, the religious headwear. Courts have been inconsistent in their decisions on these issues.

Sometimes a successful argument has been that “the reputation or image of the business would be harmed.” This has worked when the employer could show undue hardship by allowing the accommodation of not wearing the uniform headwear (actual harm to its reputation). This might be successful for a business located in an ethnic neighborhood or other less tolerant local community, but is unlikely to be effective in general metropolitan setting where multiculturalism is more prevalent.

There are many resources available to assist restauranteers with creating personnel policies. Payroll companies, HR consultants and attorneys routinely assist restaurant owners in developing policies that are compliant with federal and state laws. Some consultants even provide a free library of template forms to their customers. The good news is that this is not a recurring cost every year. Once your policy has been created and reviewed for compliance, it will only need to be reviewed every 3-5 years unless there are major changes in the laws.