Recently, in an 8-1 ruling, the Supreme Court found that retailer Abercrombie & Fitch had violated the civil rights of Samantha Elauf, a job applicant who wore a hijab to her interview. The company declined to hire Elauf because her dress violated the company’s “look policy” which prohibited head wear of any type. The company held that because all head wear was prohibited, its decision was not discriminatory. In its ruling, the court stated that:
“The rule for disparate-treatment claims based on a failure 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.”
See the ruling: EEOC v. Abercrombie & Fitch Stores
In this post, we look at a roundup of analysis on the case from employment law and HR experts.
In JDSupra Business Advisor, employment law attorneys James Burns, Jr., Megan Farrell, Stephanie Wilson of Reed Smith consider the EEOC v. Abercrombie & Fitch case and ask if you need to ask applicants whether they require religious accommodation. They offer background and an overview of the case and summarize the Supreme Court’s ruling and its implications:
“Because questions about an applicant’s religion could themselves give rise to a discrimination claim, employers are likely safer raising that subject only where, as in Abercrombie, they know or have reason to suspect that the employee’s practice is religious. Employers should ensure that all applicants are given full notice of all essential job functions and other workplace policies, including those relating to appearances and the days and hours they must work, and that they ask applicants if any such requirements may cause a problem. That gives applicants the opportunity to raise any possible conflicts based on religion and open the door to a discussion about possible accommodations. In this way, employers may avoid religious discrimination claims while satisfying any potential accommodation requirements.”
In HR Cafe, Dave Clemens looks at just how such a conversation might look. He talks about how the SCOTUS ruling on religious garb puts employers in a double bind: in the hiring process, employers can’t ask applicants what religion they follow, but the recent Supreme Court decision calls on employers to consider religious accommodation for dress. Clemens asks if employers “…have to guess whether what you’re seeing is merely a personal fashion statement, or rather an expression of a religious belief that is protected under federal anti-discrimination law?”
He offers a sample dialogue for how employers might tackle this thorny issue in an interview:
Supposing the applicant across the desk from you sports a bushy beard and long, unkempt hair. The dialogue might sound something like this:
Q. “Under our grooming code, we ask employees not to wear full beards or hair that falls below the shoulders. That’s because we’ve had hygiene and safety problems with these in the past. We do allow trimmed beards and hair shorter than shoulder-length. Would you be able to comply with this policy if you were hired?”
A. “I don’t know. You can see my beard and hair. Would they comply?”
Q. “Well, no. But tell me: Is your grooming the result of personal preference, or is there some deeper meaning?”
A. “Actually, there is. I’m a Nazarite, and we believe that growing out our hair and beards expresses devotion to God.”
In Inside Counsel, Ed Silverstein turns to employment law attorney Laura O’Donnell for lessons that employers should take from the decision. O’Donnell says that the case shows that companies have to think very hard about having image-based policies and that organizations that do choose to have such policies should proactively address possible exceptions when it comes to protected groups. She also notes that the case points to the importance of training for managers who make hiring decisions to base hiring on objective factors and job duties and to focus on whether the applicant can do the job.
Additional analysis and advice for employers: