A ruling in a closely watched religious discrimination case means employers may be liable for discrimination if they base employment decisions on an applicant’s suspected religious practices even in situations, such as the one in this case, in which the applicant hasn’t directly disclosed a need for a religious accommodation.
On June 1, the U.S. Supreme Court issued an opinion in EEOC v. Abercrombie & Fitch Stores, Inc., a case involving Samantha Elauf, a young Muslim woman who interviewed for a job in an Abercrombie store in Oklahoma in 2008. During the interview, she wore a head scarf as part of her Muslim faith. At the time, Abercrombie had a “look policy” prohibiting head coverings.
Elauf’s interviewer suspected she wore the hijab because of her religion, but her possible need for a religious accommodation wasn’t discussed during the interview. She was deemed qualified for the job, but when the store’s assistant manager checked with her district manager, she was told that all headwear, religious or not, would violate the company’s look policy, so she wasn’t offered the job.
The Equal Employment Opportunity Commission (EEOC) filed suit, claiming Elauf was the victim of religious discrimination. A trial court sided with the EEOC, but the U.S. 10th Circuit Court of Appeals disagreed.
The Supreme Court, however, ruled in favor of the EEOC’s stand and against Abercrombie’s argument that its policy wasn’t religious discrimination because it banned all head coverings, not just religious garb.
Mark I. Schickman, a partner with Freeland Cooper & Foreman LLP in San Francisco, said the Court’s ruling means that the law protects not just religious beliefs but also practices. He said Abercrombie argued that its policy treated all hats the same, but the Court said they’re not the same because Elauf’s wearing of a hijab was a religious act.
Schickman pointed out that between the time the Court heard arguments and issued its decision, Abercrombie changed its policy.
Kaitlin L. Hillenbrand, an attorney with Steptoe & Johnson PLLC in Bridgeport, West Virginia, said the rule announced by the Court is that “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” The Court rejected Abercrombie’s argument that Elauf had to prove it had actual knowledge that she needed a religious accommodation.
“The Court noted that Title VII of the Civil Rights Act of 1964 does not include a knowledge component; it merely prohibits certain motives, regardless of the employer’s actual knowledge,” Hillenbrand said.
Advice for employers
“Employers certainly do not want to face lawsuits based either on their knowledge of or ignorance of an applicant’s religious beliefs and practices,” Hillenbrand said. “There is a fine line between eliciting information about an applicant’s religious beliefs for the purpose of determining whether any religious accommodations are needed and eliciting information about an applicant’s religious beliefs for any other purpose, which could be considered religious discrimination.”
Hillenbrand advises employers to approach the issue like they would address a disability. “That is, don’t ask a job applicant about his or her religious beliefs and practices, just as you would not ask whether the applicant has a disability.” Instead, she said to ask applicants whether they are unable to fulfill any of the job’s requirements.
“If they are unable, ask whether the reason is religious,” Hillenbrand said. “If so, ask the applicant whether he or she would need an accommodation and what that might consist of. Confine your discussion with the applicant to the job’s duties and requirements and whether the applicant can fulfill those with a reasonable accommodation.”
Hillenbrand said that if an employer has at least a suspicion that the applicant may need an accommodation because of a religious belief, it shouldn’t refuse to hire the applicant solely on that knowledge or because an accommodation would be needed without first determining whether the accommodation would impose an undue hardship on it.
Ryan Frazier, an attorney with Kirton McConkie in Salt Lake City, Utah, said the decisive 8-1 ruling makes clear that the Abercrombie hiring manager’s belief that the applicant wore the hijab for religious purposes was all that was required and that “actual knowledge” of a need for a religious accommodation wasn’t necessary.
Instead, the Court concluded that the religious practice needing accommodation needed to be only a “motivating factor” in the hiring decision, Frazier said, and the need for an accommodation did not need to be confirmed to the employer.
“One message has come through loud and clear: An employer cannot make employment decisions adversely affecting an employee or applicant for the purpose of avoiding a potential religious accommodation,” Frazier said. “The need for an accommodation does not need to be known. A belief or suspicion of the accommodation need that factors into an adverse employment action or decision is enough for employer liability under a disparate-treatment claim.”
Frazier said the ruling is limited to situations in which an employer discriminates against an employee or applicant because of the need for a religious accommodation. It doesn’t change when an employer must accommodate a religious belief or practice.
“An employee should first communicate the need for an accommodation of a sincerely held religious practice, belief, or observance that conflicts with a work requirement before an employer needs to provide an accommodation,” Frazier said.
Dress codes seem like they should be cut and dry, right? Unfortunately, as this Supreme Court ruling shows, they aren’t. Learn the ins and outs of proper dress codes by participating in the webinar “What Not to Wear: How to Fashion and Enforce Rules on Tattoos, Piercings, Dress, and Body Expression” on June 10. If you’re an employer in California, you face even more challenges. We will be presenting a California-specific version of this webinar on June 30.