Do we have to hire the best candidate for the job … if they have a visible Swastika tattoo?

I’ve read this post and this post about this recent lawsuit about seven current and former employees who claim they were forced to work with ‘Nazi sympathizers.’ They allege that the company hired and promoted a white employee with a swastika tattoo on his face and ties to a white nationalist group.

If true — and remember that these are just allegations in a complaint — that’s awful.

But let’s change the facts.

Suppose an individual applies for a job opening with your company. The interview goes so well that you can hardly wait to tell the rest of the team that you’ve found the ideal candidate. That’s when you notice the giant swastika on the back of the applicant’s neck as they leave your office.

Having heard your audible gasp and your jaw hitting the floor, the applicant quickly turns around. And after seeing the shock on your face, they quickly put two and two together.

“Oh, you saw the marking on my neck.”

“You mean the swastika?”

While one would generally associate swastikas with the Nazi Party and white supremacists, the applicant explains that the symbol is part of their religious culture. Indeed, according to Wikipedia, Hindus and Indigenous peoples have used the swastika. Buddhists have also used the swastika as a symbol of luck and good fortune.

So, does that mean that your company must hire the individual and permit them to display the swastika at work?

Not at all.

In Kaushal v. Hyatt Regency Woodfield, for example, a federal judge dismissed the religious discrimination claim of a worker who sprayed a swastika on a mirror as a religious ‘good luck’ symbol. In that case, the employee never revealed that the symbol had any religious meaning to him. Notwithstanding, the defendant had no duty to accommodate.

“It is absurd to argue that his behavior was susceptible of accommodation. While the swastika may have a revered place in the religious world of Kaushal and others, it is also one of the most offensive and condemned symbols in much of the United States and the western world. Indeed, the swastika is so offensive to so many that its public display in a midwest hotel with the sanction of management is unthinkable. The law does not require indifference to the sensitivities and feelings of many to accommodate the public religious fervor of one.”

Perhaps that outcome would be different here if the applicant volunteered to cover up the swastika at work. Otherwise, I can’t imagine how permitting the display of a swastika at work would cause anything but an undue hardship on the business.