013: Putting Her Faith in the Court System

Stella Case No. 013, Originally Published: 30 October 2002

Kimberly M. Cloutier, 27, of West Springfield, Mass., has several piercings in each ear for ear rings. And a lip ring. And an eyebrow ring. In the spring of 2001 her employer, Costco Wholesale, operator of the Costco warehouse stores, instituted a new dress code. Among other things, it prohibits facial and tongue jewelry, and visible tattoos.

Although Cloutier had worn her jewelry for more than two years during her four-year Costco career, the new dress code made her multiple piercings a problem. Store managers told her she had to cover or remove her “facial jewelry” while at work, but when she refused she was sent home. After several weeks at an impasse, she was fired.

costco 300x108 - 013: Putting Her Faith in the Court SystemThis being America and all, Cloutier responded by filing a lawsuit against Costco in U.S. District Court in Springfield, Mass. She doesn’t claim some hazy violation of her freedom of expression; rather, Cloutier says, her piercings are a sign of her faith, and Costco’s actions constitute religious discrimination. She is asking for $2 million in compensation.

What makes her body piercings a religious issue? Cloutier says she is a member of the “Church of Body Modification,” which calls itself “an interfaith church whose members practice an assortment of ancient body modification rites, which we believe are essential to our spiritual salvation.” She was emboldened in her claim by the U.S. Equal Employment Opportunity Commission. When Cloutier complained of Costco’s actions, EEOC Boston Area Director Robert L. Sanders ruled Costco “probably” violated the 1964 Civil Rights Act when it fired her.

“It’s not just an aesthetic thing,” Cloutier says. “It’s your body; you’re taking control of it.” Well which is it: religious persecution, or “body control”?

Her former employer, of course, disagrees that this is a religious issue. “Costco was acting in the best interest of its members and customers,” says Costco attorney Lynn A. Kappelman. It’s reasonable for the company to bar facial piercings “in the same way that we require our employees to be sanitary and clean and neat in our dress.”

It’s a typical reaction to Costco: you always come out of there with more than you intended when you went in.

Sources

  • “Eyebrow Ring, Firing Spark $2 Million Suit,” Springfield Union-News, 16 October 2002

Case Status

The district court granted Costco’s motion to dismiss Cloutier’s state civil rights claim but allowed the federal and state discrimination claims to proceed. Costco then moved for summary judgment on the discrimination claims, which were granted. Cloutier appealed.

In 2004, the appeals court noted that the “body modifications” included “facial piercing and cutting,” but stated categorically that “Although these practices were meaningful to Cloutier, they were not motivated by a religious belief.” While the “Church of Body Modification” claimed about 1,000 members, “The church’s website, apparently its primary mode for reaching its adherents, did not state that members’ body modifications had to be visible at all times or that temporarily removing body modifications would violate a religious tenet.”

The appeals court thus ruled that “Costco’s offer of accommodation was manifestly reasonable as a matter of law. The temporary covering of plaintiff’s facial piercings during working hours impinges on plaintiff’s religious scruples no more than the wearing of a blouse, which covers plaintiff’s tattoos.” Also, “In granting summary judgment on the Title VII claim, the [lower] court stressed that ‘the search for a reasonable accommodation goes both ways.'”

The plaintiff, it summarized, is an “employee who will accept no accommodation short of an outright exemption from a neutral dress code. Granting such an exemption would be an undue hardship because it would adversely affect the employer’s public image. Costco has made a determination that facial piercings, aside from earrings, detract from the ‘neat, clean and professional image’ that it aims to cultivate.” Thus, the lower court’s decision was affirmed, and Cloutier’s case ended.

  • Source: “Kimberly M. Cloutier, Plaintiff, Appellant, v. Costco Wholesale Corp., Defendant, Appellee, 390 F.3d 126 (1st Cir. 2004),” U.S. Court of Appeals for the First Circuit – 390 F.3d 126 (1st Cir. 2004), Heard September 14, 2004, Decided December 1, 2004.

Letters

Brian in California: “I am a law student and I love your publication. I also love seeing some of the frivolous cases in my own case books. But believe me, they are a minority. You already pointed that fact out. One fact you might not know is good lawyers are about as powerless to stop the bad ones as you are. The best I can do, when I graduate, is practice ethically. Peer pressure won’t stop the few bad apples from not following my example, there’s too much money to make. Judges have sometimes allowed the outrageous awards to stand, and Legislatures have ignored the problem. Awareness is the first step. I hope your readers someday find an opportunity to pressure their politicians for change. If legislation ever comes up, we should consider voicing our support to our members of Congress.”

I disagree, Brian — lawyers can do a lot to rein in their peers; they’re officers of the court, and they have a responsibility to police their ranks. It’s quite understandable that no one wants to go first, but someone needs to step up; thinking about ethics is a great start. Don’t sell them out, because there’s more power in one voice than you think — as I’m demonstrating every week to a larger and larger audience. And I’m far from the only voice in this arena; the chorus is growing.

Susie in Nevada: “I’m a freelance paralegal and truly enjoy this gem of a newsletter. Your comments that the legal profession must clean up its own dreck are right on. However, having worked with many a lawyer, good and bad, I can say this will probably happen when the proverbial porkers are airborne. Most young law students get into the profession with dreams of fighting the good fight for the downtrodden or taking on the bad ol’ corporations, but once they get out of school and into the real world, those dreams fizzle like yesterday’s beer — and the lure of that one big jury award begins to loom in the background. This can be a nasty, ugly, frustrating and utterly ridiculous business, particularly for those of us who deal in criminal and domestic law. But, with the help of folks like you and your readers, perhaps there is hope things may change for the better.”

Which is perfectly followed by…

Ralph in Ontario, Canada: “There will never be enough ‘outrage’ to end frivolous cases as long as John Q Public might get his million dollar pie and his lawyer gets his percentage.”

One of the nice things about outrage is, it’s cumulative. The outrage will build once people REALLY start to understand where all those million-dollar pies are coming from: our pockets. Insurance companies? Nope: where do they get their money? From you, in the form of “premiums” (you have noticed your premiums are going up and up, right?)

And that’s just the start. How much more does an SUV cost because a few people didn’t understand they’re more top-heavy than a station wagon and rolled theirs over …and won a big lawsuit over it? When people figure out how much the cost of the things they buy every day is going toward insurance and lawsuits, the outrage will grow. And grow, and grow. But yeah: it’s a long uphill battle.

My 2020 Thoughts on the Case

All I can say is, the three appeals court judges were absolutely right in this case.

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3 Comments on “013: Putting Her Faith in the Court System

  1. I am not a lawyer, but I think that Freedom of Religion cases are always going to be problematic and open to frivolous suits as the American courts have already ruled that they cannot determine someones “Sincerely held Beliefs”.

    We have seen this tested with things like Pastafarians (followers of “Flying Spaghetti Monster) being allowed to wear a Colander on their head in driver-license photos. I’m not sure if there is a fair method for the courts to rule otherwise.

    Even though it is clear that a Muslim woman, Orthodox Jew or Sikh has a sincere religious belief that obligates them to cover their head, and a Pastafarian is making a mockery of religion, I can’t think of any fair way that the courts can determine this.

    The American protection of religion is far better than many other countries, for example in Canada the courts ruled that government employees cannot have religious head covering (which discriminates against many religious adherents) and France has ruled that you cannot wear full-body (“modest”) bathing suits on public beaches, which basically limits religious Muslim or Jewish women from visiting public beaches.

    Reply
    • In the interests of accuracy, women *are* allowed to wear burkinis on public beaches after the Council of State overturned the municipal ban in 2016.

      However, some municipal swimming pools only allow swimming in fitted trunks for men (no baggy trunks or board shorts) and one- or two-piece swimsuits for women. These rules were originally for hygiene — to prevent people from swimming in street clothes — but people are now campaigning for burkinis to be added to the acceptable clothing list, which seems eminently sensible to me.

      Reply

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