In today’s world, employers face cultural and faith issues in the workplace. To further complicate matters, the Equal Employment Opportunity Commission (EEOC) has begun paying more attention to those issues. A recent case out of Tulsa, Oklahoma, serves as a reminder about your obligations when taking into account cultural or religious differences among employees and customers.
In July, a young Tulsa woman received a $20,000 jury verdict against fashion giant Abercrombie & Fitch. The award came after the judge in the case determined she had been the victim of unlawful discrimination because Abercrombie failed to accommodate her religious beliefs.
Abercrombie’s “Look Policy”
Samantha Elauf is Muslim. As part of her religion, she wears a headscarf known as a hijab. When she applied for a position as a “model” at Abercrombie, she wore the hijab to the interview. She received high marks in her interview, but the store manager was unsure of what to do because of the hijab.
Abercrombie requires all models to adhere to its “look policy.” The policy has many restrictions, including prohibiting heavy makeup, black clothing, and necklaces. Generally, the policy requires employees to dress in merchandise like that sold at Abercrombie stores. Significantly, the policy prohibits employees from wearing “caps.” Hence the problem with Elauf ― her hijab was prohibited by the look policy, so she wasn’t hired.
EEOC Takes a Look
The EEOC went to bat for Elauf and filed a lawsuit in Tulsa against Abercrombie. The agency claimed that the employer failed to accommodate her religion when it refused to hire her because of her hijab. As the judge in the case stated:
Title VII [of the Civil Rights Act of 1964] imposes an obligation on the employer “to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business.”
The requirement works similarly to the accommodations consideration required under the Americans with Disabilities Act.
Abercrombie argued that the look policy was crucial to its marketing campaign and selling approach. However, it hadn’t conducted any study supporting those propositions, and the store had no statistics to support its theory. Even more damning was the fact that similar accommodations had been made by Abercrombie for other employees in other stores and cities. Accordingly, it failed to show Elauf’s hijab created an undue burden.
What’s an Employer To Do?
Upon learning about a religious requirement, you may consider whether the religious belief is bona fide. The law defines “bona fide religious belief” as one that is “religious within the [employee’s] own scheme of things” and “sincerely held.” Keep in mind that the employee’s perspective is given great weight. Title VII covers both traditional and nontraditional religions, and it’s not up to you (or a court) to determine if a religion actually requires the accommodation requested by an employee. Instead, the question is whether the belief maintained by the individual is one of conscience or is spurred by deception and fraud.
Assuming the employee holds a sincere religious belief, you must provide a reasonable accommodation unless doing would cause an undue burden. Determining the existence of a reasonable accommodation involves communication between you and the employee. You don’t always have to provide the exact accommodation requested, but you should take into account the employee’s preference. For instance, you need not remove someone from his position to fulfill a religious accommodation for someone else. However, allowing someone to adjust her hours to accommodate a Saturday Sabbath may be reasonable.
When does an accommodation create an undue burden? The EEOC recommends that you assess the costs of the accommodation in relation to factors such as company size, operating costs, and the number of employees needing an accommodation. As a general rule, absent a safety concern, dress code variations will not impose an undue burden on an employer.
This case should remind you of your obligation to make reasonable religious accommodations for employees and applicants. You should engage in interactive communications with employees and job candidates about their religious needs to determine possible accommodations. If an accommodation is reasonable and not inordinately expensive or disruptive, you should consider it.
Sharolyn Whiting-Ralston is a trial lawyer with McAfee & Taft in the firm’s Tulsa, Oklahoma, office. She may be contacted at firstname.lastname@example.org.