Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.
In 2008 Abercrombie refused to hire 17 yr. old Samantha Elauf, a practicing Muslim,
because the headscarf that she wore pursuant to her religious obligations
conflicted with Abercrombie’s employee dress policy which prevented the wearing
of “caps”. Interestingly Ms. Elauf was a customer of Abercrombie and wore their
clothing during the interview.
In 2009 the Equal Employment Opportunity Commission (EEOC) filed suit on
Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of
1964. That case went to trial where Ms.
Elauf obtained a $20,000 jury verdict. On appeal, the 10th
Circuit in 2013 reversed the trial result ruling that Ms. Elauf did not request
an accommodation for her religious practices.
Last week, the U.S. Supreme Court overruled the 10th Circuit
opinion and held in an 8-1 decision written by Justice Antonin Scalia that an
employer may not refuse to hire an applicant if the employer was motivated by
avoiding the need to accommodate a religious practice. Such behavior violates
the prohibition on religious discrimination contained in Title VII of the Civil
Rights Act of 1964.
EEOC General Counsel David Lopez hailed the decision. "At its root,
this case is about defending the quintessentially American principles of
religious freedom and tolerance," Lopez said. "This decision is a
victory for our increasingly diverse society and we applaud Samantha Elauf's
courage and tenacity in pursuing this matter."
According to the Supreme Court, "An employer who acts with the motive
of avoiding accommodation may violate Title VII even if he has no more than an
unsubstantiated suspicion that accommodation would be needed." The court
continued that "...to accommodate a religious practice is straightforward:
An employer may not make an applicant's religious practice confirmed or
otherwise, a factor in employment decisions."
"I was a teenager who loved fashion and was eager to work for
Abercrombie & Fitch," said Elauf. "Observance of my faith should
not have prevented me from getting a job. I am glad that I stood up for my
rights, and happy that the EEOC was there for me and took my complaint to the
courts. I am grateful to the Supreme Court for today's decision and hope that
other people realize that this type of discrimination is wrong and the EEOC is
there to help."
To assist employees and employers in understanding their rights and
obligations about accommodations for religious observances, the EEOC has a fact
sheet on Religious
Garb and Grooming in the Workplace.
The only dissent was by Justice Thomas who used to be the head of the EEOC.
He said the Court has drastically changed EEO law by turning this into a direct
discrimination case as opposed to analyzing it as an indirect, disparate impact
case, which turns on business necessity analysis.
Otherwise “neutral” policies on their face (no caps, no
beards, requirement to work on Saturday) can create direct discrimination
claims even if there is no intent to discriminate. If any part of the decision
not to hire implicates religion the employee or job applicant can sue. In
addition the employee has no obligation to request a religious accommodation.
Under ADA law, individuals with disabilities get
preferential treatment. For example, someone who can’t drive to work may be
accommodated by working from home, even if the company has a no-telecommuting
policy. The only “out” for the employer is to prove undue hardship. Same thing
applies to religious discrimination and accommodation. In this case Ms. Elauf
gets preference over other “cap” wearers. Interestingly, accommodation didn’t
really come up in the case because it was never discussed at the time of the no
The case leaves many questions unanswered. For example,
let’s say she was applying to be a bikini model. Would she have the right to
appear in ads wearing her headscarf? What if she wore a skull cap to hide the
fact she was bald from undergoing chemotherapy treatment? What if he wanted to
wear a full burka to work? What if you have a no tattoos showing policy and
they are being asked to cover a cross they have on in support of their
religious beliefs? Drawing the line will be difficult for employers. Also
unanswered is whether there would be no liability if in fact the employer had
no clue the garb was for religious purposes (which was not the facts in this
If an employee or applicant violates a dress code or
“look” policy make sure to rule out religious or disability accommodation
concerns. Sometimes you will simply have to ask that person if they dress that
way for religious reasons.
Train your managers. Make sure they understand not just
about race, age and sex discrimination but also religious discrimination and
employees is a never ending challenge for most all employers. Here’ a few ideas
to help you stand out from the crowd:
1. Include a
brief slide deck or video explaining the job opportunity on any job posting
page. Make sure the link is mobile-friendly. If you do not know how to do this,
ask one of the 20-somethings in your workplace and they can do it for you. Make
sure you get a YouTube and SlideShare account.
what skill and cultural characteristics matter most. Have your employees talk
about it on a video. For example, are you hiring in the top 25% of skill sets?
Is there a place where applicants can actually get themselves tested to see if
they pass muster before you ever interview them? Also, what type of culture, attitude
or personality are you looking for? Spell it out for people. You may be a
crazy, fast-paced, frantic company. If so, say you are looking for people who
thrive in such an environment. Conversely, you may be a laid-back, family
business that's really not interested in hiring Type A's. Let them know that
3. This is a
knowledge economy. Find out if applicants are learners. What have they done to
educate themselves, given their career aspirations, over the last year? What
books, magazines, courses have they paid for on their own? Also ask them what
they've learned about the company at the beginning of the interview process and
then follow up with the very same question at the end in light of the
interviews they went through.
4. You are
hiring people to solve problems. Most problems have two aspects to them:
strategic (ideas) and tactical (actions). Put your biggest problems in front of
candidates and ask them what strategic and tactical steps they would take to
help you solve it. You should gain a lot of valuable information- even from
those candidates that you failed to hire.
5. Do a
committee interview of the three final candidates. Depending on your
circumstances, include a mix of panelists with employees, managers and others
on it. Keep the panel to three people. Then have that panel prepare three
interview questions they will ask of all three candidates. This means that a
total of 27 questions will be asked at a minimum.
this committee interview, you are not just focused on the candidates' answers,
but how those candidates treat each other through the competitive process. It
will tell you a lot about their personality and how they will treat fellow
employees once they are hired.
idea - Ask job applicants to provide a joke with their resume. That’s right, a
joke. It will tell you a lot about their personality. If they don't supply a
joke, well, they can't follow instruction and you don't hire them. When they do
supply a joke, it will let you know if they are capable of political
correctness in the workplace. Anyone who provides a racy joke should be
reconsidered, unless that's the type of culture you are nurturing. Lastly, it
will help the interview process go much faster and you'll get a few laughs along
comments section below, don't hesitate to add some of your great hiring ideas.