iOn June 1, 2015, the EEOC scored a victory—courtesy of the U.S. Supreme Court—in its lawsuit against Abercrombie & Fitch alleging religious discrimination under Title VII. EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86 (June 1, 2015).
Samantha Elauf was a practicing Muslim who applied for a sales position at an Abercrombie retail store. She appeared for her interview in a hijab (a Muslim headscarf). Although the interviewer rated Elauf favorably, she was concerned that Elauf’s hijab would violate the store’s dress code. Abercrombie had a “Look Policy” that prohibited its sales employees from wearing “caps.” Elauf never mentioned her religion or requested a religious accommodation during her interview, but the interviewer assumed Elauf wore her hijab because she is Muslim. Ultimately, Abercrombie did not hire Elauf because the hijab conflicted with its facially neutral Look Policy.
Under Title VII, an employer may not refuse to hire an applicant because of a religious observance that conflicts with the employer’s neutral policy, unless it can show that accommodating the religious observance would cause undue hardship. The EEOC sued Abercrombie on behalf of Elauf for failing to accommodate her because the company refused to make an exception to its Look Policy. Abercrombie argued that it could not be liable for intentional discrimination because the company never had “actual knowledge” that Elauf wore the hijab for religious purposes.
The district court granted the EEOC’s motion for summary judgment on liability, but the U.S. Court of Appeals for the Tenth Circuit reversed, holding that a plaintiff must show that the employer had actual knowledge of the need for a religious accommodation in order to prove a disparate treatment claim. The Supreme Court granted certiorari to determine whether a reasonable accommodation must be made “only where an applicant has informed the employer of his need for an accommodation.”
In an 8-1 decision, the Supreme Court held that an applicant claiming disparate treatment has to show only that the need for accommodation was a “motivating factor” in the employer’s hiring decision, not that the employer had actual knowledge of her need. Quite simply, “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
On the heels of this decision, employers should expect the EEOC to critically examine facially neutral hiring policies, grooming, and dress codes, and similar policies and procedures that may adversely impact religious groups or individuals. This is especially true in light of the EEOC’s stated intention in the SEP to target “facially neutral recruitment and hiring practices that adversely impact particular groups,” including religious groups.
The Supreme Court, however, provided little guidance to employers confronted with a suspicion that a religious accommodation may be needed. So what should an employer do to avoid liability for religious discrimination when applying a neutral policy to its workforce? For starters, employers should continue to avoid asking about an applicant’s, or an employee’s, religious beliefs or practices. The only time that religion should enter a job interview is if there is a job-related basis for initiating that conversation. In all other situations, that inquiry should be avoided; otherwise, a disparate treatment claim may arise.
Understanding the EEOC will be emboldened to scrutinize any image-based policy, including dress codes and grooming policies, prudent employers should review these policies to determine whether and to what extent there is a business purpose for their implementation. Those policies that do not further the business interests of the company and that invite discrimination claims may be worth discontinuing.
Employers that employ neutral image-based policies should be prepared when they suspect that such a policy might conflict with an applicant’s religious practices. In those situations, the employer should make the relevant policy and essential job functions clear to the applicant and, without mentioning religion, ask whether there is any reason that he or she cannot comply with those policies and functions. If the applicant responds that he or she can comply, no further conversation is necessary. If the applicant states that he or she cannot comply or would need a reasonable accommodation, then the company should be prepared to engage in an interactive dialogue and offer a reasonable accommodation. At all times, the company should avoid raising the subject of religion unless and until the applicant articulates a religious need for an accommodation.
In all circumstances, employers should seek advice from appropriate human resources and legal professionals when navigating the complicated issues of religion and accommodation. Of course, employers should ensure that their human resources personnel, managers, and interviewers are adequately trained as to how to appropriately respond to accommodation issues, religious or otherwise.
