30 July 2015

Religious Accommodations: It’s Not What You Know But What You Think That Matters

The United States Supreme Court recently decided a case about religious discrimination and accommodation in the context of interviewing and hiring job applicants. In EEOC v. Abercrombie & Fitch Stores, Inc., issued on June 1, 2015, Samantha Elauf was interviewed for a position in an Abercrombie & Fitch clothing store. She received an interview rating that qualified her to be hired, but was not offered the position because she wore a headscarf.

Abercrombie & Fitch has a “Look Policy,” which prohibits any employee from wearing a “cap.” An Abercrombie manager decided that the headscarf violated the Look Policy and that Ms. Elauf should not be hired.  No one from Abercrombie discussed the Look Policy with Ms. Elauf, explained the conflict to her, or told her the reason she was not offered a position. Ms. Elauf had a friend who worked at Abercrombie who told her the reason she was not offered the position.

During depositions, an Abercrombie manager testified that they believed Ms. Elauf wore a headscarf because of religious reasons, although Ms. Elauf didn’t tell Abercrombie why she wore her head scarf.

The EEOC filed suit, alleging that Abercrombie should have considered, as an accommodation to Ms. Elaufs religious practice, making an exception to its Look Policy. Abercrombie argued that it did not need to consider an accommodation because Ms. Elauf did not request an accommodation. Abercrombie took the position that an employer must have actual knowledge, through a request by an employee, of a need for accommodation.

Title VII

Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer …

To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of   employment, because of such individual’s … religion … or

To limit, segregate, or classify his employees … in any way which would deprive or tend to            deprive any individual of employment opportunities or otherwise adversely affect his status             as an employee, because of such individual’s … religion …

Religion includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.”

Motive vs. Knowledge

The heart of the Court’s opinion lies in the difference between motive and knowledge. An employer who acts with the motive of avoiding accommodation may violate Title VII even if it has no more than an unsubstantiated suspicion that an accommodation would be necessary. The Court also stated that an employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not its motive.

Applying Neutral Employment Policies to Every Applicant (or Employee)

An employer cannot avoid liability by simply implementing a religiously neutral employment policy. Title VII gives religious practices favored treatment, obligating employers in some circumstances to make exceptions to their policies.

Take-Aways for Human Resources

  • Ask applicants if they are able to follow all of the relevant work rules, including dress codes   and grooming/appearance policies. If the answer is no and the applicant indicates that their religion is the reason, consult with management or an attorney about whether accommodating the applicant’s religion would be a hardship to your organization.
  • Train managers and others who may have responsibilities for interviewing and hiring decisions.
  • An applicant or employee does not have to affirmatively tell you about their religion and why it interferes with a job requirement.
  • Following a neutral policy (like Abercrombie’s Look Policy) is not a defense. When religion is involved, you must ask yourself if your organization can accommodate an exception to the neutral policy.

If you have questions concerning this article or religious accommodations, please contact the author or any other member of the Miller Johnson employment and labor practice group.