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Editors Column - US Supreme Court Rules Employers Cannot Refuse to Hire Applicants Based on Religious Belief or Practice, Even If Not Specifically Asked for an Accommodation

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Equal 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.

Practical pointers:

1.      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.

2.      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 hire decision.

3.      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 case)?

4.      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.

5.      Train your managers. Make sure they understand not just about race, age and sex discrimination but also religious discrimination and accommodation.

 

QUESTION: TRAINING: WHO PAYS?

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Question:
Do we have to pay a nonexempt (hourly) employee to complete training courses outside of his normal working hours when it is a requirement for the job?

Answer:
The following information is excerpted from the U.S. Electronic Code of Federal Regulations:

Employees who spend time at lectures, work courses, employer-sponsored training programs or employee meetings must count that time as hours worked for pay purposes unless all of the following criteria are met:

  • Time is outside of normal working hours.
  • Coursework is unrelated to the employee’s regular job, such as learning the requirement of a new or higher-rated job.
  • Attendance is strictly voluntary (except for continuing education training).
  • No production work is performed.

Here are additional pointers on the legal obligations involved: 

  • An employer must compensate for mandatory training time unless it’s directly related to professional licensing; 
  • If an employee is required to attend training on a day not normally scheduled they must receive at least a half day’s pay; 
  • Time spent on voluntary training is not compensable if it’s outside normal working hours and not directly related to the employee’s job. For example, training a programmer on using a current application is compensable; paying for an MBA program so the employee can become a future manager is not; 
  • Training that directly benefits an employer is always compensable. For example, new-hire training on welding procedures on an object eventually purchased by a client is compensable; voluntary welding training that results in no end product is not. 
  • Training expenses can be reimbursed on a pro-rata basis if an employee agrees to do so beforehand and leaves the company a short time afterwards. So, if the employee goes through a year-long training program that costs the company $10,000 and they take another job a month later, it’s appropriate to demand reimbursement for most, if not all, of this expense; 
  • An employer that operates a for-fee training program cannot use completion of the program as a condition of hire.


 

THE CAUSES OF WORKERS COMPENSATION RETALIATION CLAIMS

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Employer can get in trouble when their managers retaliate against an employee who files a workers compensation claim. In some states the employee may bring wrongful termination and other lawsuits. In other states, like California, the remedy is within the work comp system, known as a 132(a) claim. When filing a Section 132(a) claim, “in addition to establishing that the industrial injury has resulted in some detriment, the worker must also prove that he or she was singled out for disadvantageous treatment because of the injury.” This is typical of language found in other states. 

Conduct that will not result in a retaliation claim: 
  • Where there is truly no work available. 
  • Where the employee is unfit for duty because they will risk further injury or aggravation to an injury. 
  • Where there are safety issues related to the employee or third parties. 
  • Where there’s a business necessity (such as lack of funds or a change in company direction). 
  • If they were terminated for cause (and consistently with how others were treated in engaging in similar wrongdoing).
  • If there’s a layoff or reduction in force. 

Conduct that can generate claims: 
  • If there/s a change in pay, hours or duties without a legitimate business justification.
  • Where they were “singled out” or otherwise treated “differently” than others causing discrimination claims.
  • Where the company makes return-to-work or light-duty decisions without medical proof. 
  • Where employees are placed in demeaning light duty positions.
  • Forgetting the ADA and FMLA also impact on return to work decisions.

 

Five Great Hiring Ideas…and a Fun Bonus Idea!

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Hiring great 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.

2. Identify 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 too.

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.

When doing 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.

Fun bonus 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 the way.

In the comments section below, don't hesitate to add some of your great hiring ideas.