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When the EEOC Comes Knocking
Federal Court Permits EEOC to Enter, Inspect, and Photograph Business Facility

3.26.2018

Last week, a United States Magistrate Judge authorized a legal photographer and two EEOC lawyers to enter, inspect, and photograph Akebono Brake Corporation’s West Columbia, South Carolina facility.¹ Although Akebono succeeded in narrowing the scope of the EEOC’s original, broader request (including videography), the mere thought of a government agency sending its lawyers into a business is enough to concern most employers.

The Akebono case arose out of a dispute involving Akebono’s alleged revocation of an employment offer to Clintoria Burnett (via a staffing agency) after learning that her religious belief prohibited her from wearing pants. According to Akebono, permitting Burnett to wear skirts instead of pants was not a reasonable religious accommodation because it would have created an undue hardship. Specifically, Akebono contended that permitting employees to wear loose clothing at its facility presented a safety risk because the clothing could get caught in machinery, resulting in serious injury.

The EEOC requested entry onto Akebono’s premises to observe and video the areas Akebono alleged Burnett was at risk. Even though the record already contained evidence of the facility’s layout and Akebono’s safety concerns, the EEOC maintained that inspection of the facility could assist it with definitively showing Burnett’s ability to perform the essential functions of her job while wearing a skirt. In turn, Akebono attempted to offset the relevance of the entry request by showing that the safety risks, potential business disruption, and privacy and confidentiality concerns associated with the request rendered it disproportional to the needs of the case. The court ultimately allowed the EEOC’s entry request, but narrowed the permitted areas of inspection and only approved use of still photography.

This case is an example of the EEOC aggressively challenging an employer’s grounds for enforcing a dress code. While dress codes – particularly for employees working around dangerous machinery – are generally lawful, employers should carefully consider the reasons for implementing dress codes to ensure the requirements will withstand legal challenges. This analysis is especially important when employees request exceptions to a dress code policy on religious or other legal grounds. Employers may decline requested accommodations under the right circumstances, but should avoid knee-jerk, or otherwise not well thought out denials. Consultation with legal counsel to assess employee accommodation requests, or an employer’s right to decline a specific accommodation, can help avoid legal battles like the one in Akebono, or at least put the employer in the best position to defend claims arising out of denied accommodations. Should you have any questions or concerns about such legal issues, the employment law attorneys here at Poyner Spruill are available to help.

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¹ The case can be found at, EEOC v. Akebono Brake Corp., C/A No.: 3:16-3545-CMC-SVH, 2018 U.S. Dist. LEXIS 43159 (D.S.C. March 15, 2018), or http://hr.cch.com/eld/EEOCAkebono031518.pdf.

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