Employment Law Blog

News, trends and analysis in employment law and HR

Jun 03, 2015

Alert: Request for religious accommodation not required, says Supreme Court

Harassment & DiscriminationHiring 

A Muslim woman who wore a head scarf when she applied for a job at an Abercrombie & Fitch clothing store didn’t have to specifically request a religious accommodation to the store’s “Look Policy,” ruled the U.S. Supreme Court.

A Muslim woman who wore a head scarf when she applied for a job at an Abercrombie & Fitch clothing store didn’t have to specifically request a religious accommodation to the store’s “Look Policy,” ruled the U.S. Supreme Court. The woman wore the scarf because she sincerely believed it was a requirement of her religion. Company policy prohibited employees from wearing “caps.” The applicant was otherwise qualified for the job, but the store refused to hire her because her scarf violated its Look Policy. The Supreme Court said the issue was simple: If the woman’s religious practice was a motivating factor in the store’s decision to reject her for a job, then the store violated Title VII of the Civil Rights Act. It didn’t matter that the employer’s policy was neutral, and not targeted toward any particular religion. It also didn’t matter that the woman didn’t ask for an exception to the policy as a religious accommodation. When a religious practice conflicts with a neutral policy, an employer must give favorable treatment by reasonably accommodating the religious practice, as long as it doesn’t pose an undue hardship to the employer (EEOC v. Abercrombie & Fitch Stores, Inc., US, June 1, 2015).

Tips: Interestingly, the Court said that an employer doesn’t necessarily have to know for sure that a practice is religiously motivated. In this case, the store manager assumed (correctly) that the scarf was worn for religious reasons, so it was pretty easy for the Court to say that failing to hire the applicant for that reason was religious discrimination. Suppose, however, that you are hiring workers for weekend work, and an applicant says she cannot work on Saturdays. May you simply reject the applicant for not being available as needed, or must you ask whether there is a religious reason (and if so, explore reasonable accommodations)? Automatically rejecting the applicant may land you in hot water according to the Court, but discussing religious accommodations prematurely in the hiring process could generate discrimination complaints from unsuccessful applicants.

We suggest addressing this issue at two points in your hiring process: the application stage and the interview stage. At the application stage, describe in writing the expectations for the job, including the work schedule and significant physical/mental demands. This written description should be in your job posting and/or application package. Include a statement such as, “As required by law, we provide reasonable accommodations when needed due to a disability or sincerely held religious belief. If you need a reasonable accommodation to fully participate in any aspect of the hiring process, or to meet the requirements of a position for which you are applying, please contact the Human Resources Department at [phone] or [email].” This approach may not completely insulate you from liability, but it at least gives the applicant an avenue for raising an accommodation request, without directly soliciting information that could be viewed as discriminatory by an unsuccessful applicant.

At the interview stage, describe the requirements for the job and then ask whether the individual will be able to comply. Covering the expected schedule is generally a good idea in an interview. If the individual’s appearance raises a potential concern with your policy, then you should address it directly. For example, if an applicant is wearing loose-fitting clothing that would be prohibited around the machinery where they would be working, you could describe your dress code, explain the safety reasons for it, and ask whether the applicant could comply. It’s likely that if the individual has a religious objection to complying with the policy, they will raise it at that time. If an applicant provides a medical or religious reason for having difficulty with the job requirements, then it’s safest to avoid getting into details. Thank them for letting you know, and assure them that the company takes a solution-oriented approach to considering accommodations, after the hiring decision is made. Explain that if they are selected for the job, you will contact them to try to find an accommodation that is reasonable and won’t cause an undue hardship to the company. This is a difficult balance to strike, since you don’t want to give any impression of discrimination, and yet at the same time knowing that you will have to discuss accommodations may make your hiring decision more difficult.

Any evaluation of proposed accommodations should also include an assessment as to whether your standards are in fact job-related and consistent with business necessity. Contact your Vigilant employment attorney to discuss any concerns you may have about how the Court’s ruling may apply to your workplace. You can also download a copy of our Legal Guide, “Religious Accommodation in the Workplace”.

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