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

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.

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