Employment Law Daily Wearing skirt for religious reasons not disqualifying 'misconduct' for unemployment benefits
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Tuesday, March 15, 2016

Wearing skirt for religious reasons not disqualifying 'misconduct' for unemployment benefits

By Joy P. Waltemath, J.D. Wearing a skirt instead of the pants mandated by a county’s dress code for its corrections officers was not misconduct that would preclude a corrections officer from obtaining unemployment benefits. The officer had become a member of a religious denomination that believed women should wear only skirts, but she attempted to obtain the sheriff’s approval on several occasions before she began wearing a skirt to work, and after she was told directly that it violated the dress code, she took vacation days until the sheriff confirmed she was being terminated because she violated the dress code. This was not “willful, wanton, or equally culpable” misconduct, the Mississippi Supreme Court held, finding it unnecessary to address First Amendment issues (Finnie v. Lee County Board of Supervisors, March 10, 2016, Lamar, A.). After a Lee County corrections officer became a Pentecostal, a religious denomination in which some churches believe women should wear only skirts, her pastor discussed the skirt-wearing requirement with her boss, the sheriff. According to the officer, the sheriff promised her that he would help her resolve the issue and get back to her, but six months later, when the sheriff had not, she began wearing skirts to work because, she said, “the employee manual states that [the employer] would not discriminate against anyone for their religious beliefs.” She had worn skirts for approximately two weeks when both her first and second-level supervisors told her she was violating the uniform policy and she was told she would be suspended. Just put your pants back on. She asked to speak to the sheriff; when she did, he said he was waiting for confirmation on whether or not she could wear a skirt, but he also told her that she would not be suspended yet and that he would get back to her by the end of her shift. Instead, her second-level supervisor notified her that the sheriff had determined she could either wear her pants or turn in her resignation. On advice of counsel, she took vacation days while her lawyer wrote a letter to the sheriff; she also made an appointment and met with him directly, at which time he told her she was terminated because she violated the dress code policy. Her subsequent application for unemployment benefits was initially denied, but the ALJ reversed and awarded benefits, which the Board of Review affirmed, yet the county appealed, and the circuit court reversed the benefits award. She appealed. No need to reach constitutional issue. In a footnote, the state Supreme Court pointed out that there were multiple demands for additional evidentiary hearings in the case: The ALJs held three separate hearings and the Board of Review decided the case twice; each found in favor of the officer every time, and the Minnesota Department of Employment Security continued to support the officer’s position as an amicus. However, all those hearings focused almost entirely on the constitutional issue of whether the First Amendment protected the officer from being denied benefits for exercising her sincerely held religious belief that she should not wear the prescribed uniform. None of them made an explicit finding that the officer’s actions did or did not amount to misconduct, which was the threshold question, the court emphasized, and it decided the case on that basis. No misconduct. Because it had earlier held that misconduct is “conduct that reasonable and fair-minded external observers would consider a wanton disregard of the employer’s legitimate interests,” the court evaluated her conduct against that standard. The county’s argument that her actions were a “deliberate violation” of the dress code—and therefore “misconduct”—was summarily rejected. Noting that conduct may be harmful to an employer’s interests and justify the employee’s discharge but still result in disqualification for unemployment insurance benefits only if it is “willful, wanton, or equally culpable,” the court found the officer’s actions did not amount to misconduct. “Perhaps most importantly,” she never wore a skirt to work after the sheriff told her that she could not. The employee manual expressly allowed other department employees to wear skirts; it also contained a nondiscrimination policy the officer thought applied to her situation. And, although no reviewing agency or court cited it, a state administrative regulation (Section 20-1-101:308.00) defining “misconduct” stated specifically that “conduct mandated by a religious belief or the law is not misconduct.” The officer’s conduct was not “willful, wanton, or equally culpable,” and the court reversed the denial of benefits.

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