Jun 08, 2015

So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?

By: Paul Ebeltoft

This may sound like the beginning of a joke, but it is merely paraphrasing an example given by a Justice of the United States Supreme Court during oral argument in the case of EEOC v. Abercrombie and Fitch Stores, Inc., Abercrombie is not laughing.

On June 1, 2015, the high Court decided that preppie retailer, Abercrombie and Fitch, violated Samantha Elauf’s rights when it took points away from her otherwise stellar pre-employment review because she wore a hajib, a headscarf. Worn by devote Muslim women, the hajib did not fit the “Abercrombie look.” Ms. Elauf was not hired. She sued and won $20,000, but Abercrombie and Fitch appealed … and the case, as they say, went all the way.

So, you might be thinking, isn’t it already an article of faith (if you’ll excuse the pun) among HR professionals that employers cannot discriminate in hiring or conditions of employment on account of one’s religion? Why, you might ask, did Abercrombie do this and why did it take the top court of the land to state the obvious?

“This is really easy.”

is what Justice Antonin Scalia intoned when announcing the Supreme Court’s 8-1 decision from the bench. But was it? The Abercrombie “Look Policy” laid out in exacting detail what its "sales models" can wear when they're helping customers or folding clothes on the sales floor. Elauf, who was 17 at the time, interviewed for a sales model position in one of Abercrombie's locations in Oklahoma. She wore a hajib. The assistant manager who spoke with Elauf gave her high marks but, after telling Elauf to expect a work orientation appointment, the assistant manager had second thoughts. “I think [the Look Policy] says … you can't wear hats. So I was unclear,” the assistant manager was quoted as saying. She kicked the decision upstream. Abercrombie’s district manager then told the store assistant manager not to hire Elauf. “You still can't hire her [even if she wears the headscarf for religious reasons] because someone can come in and paint themselves green and say they were doing it for religious reasons, and we can't hire them," the district manager said.

Hard questions

According to National Public Radio in a February, 2015 review of the case, the Elauf lawsuit raised some tough questions: Did Abercrombie know that Elauf wore a headscarf for religious reasons? Should they have asked if they were uncertain? Was it Elauf’s responsibility to bring up a connection between her faith and her headscarf during her interview, so that Abercrombie could figure out how to accommodate her? In other words, who bears the responsibility for knowing that a religious accommodation is in order?

Hard answers

In its June 1, 2015 decision favoring Elauf, the Supreme Court held that it is the employer’s responsibility to provide “reasonable accommodation without undue hardship” even if the applicant or the employee does not ask. Justice Scalia, writing for the overwhelming majority of the Court (only Justice Thomas dissented) said that “an applicant need only show that his [or her] need for an accommodation was a motivating factor in the employer’s decision….” An employer seeking to avoid accommodation violates Title VII of the Civil Rights Act of 1964, Justice Scalia wrote, “even if [the employer] has no more than an unsubstantiated suspicion that accommodation would be needed.”

Will it be “really easy” for HR professionals?

Do you currently ask your job applicants about their religion or religious practices? No. Does the Abercrombie decision require you to do so? Probably in some cases. This will be a fine line for HR professionals to walk. Under the Abercrombie rule, if you suspect an applicant’s or an employee’s garb or actions to be a religious practice, you must accommodate it, unless accommodation causes undue hardship. But to determine whether your suspicion is real, do not inquire directly of the religious practice. Rather, outline the part of your company’s policy which may prohibit the practice you suspect is religiously based. Then ask “do you have a problem with complying with our policy?”

This dialogue is familiar to HR professionals. You now ask, for example, whether an applicant will have any trouble working a particular job schedule or meeting other job requirements. The dialogue that such questions engender help your employee or a prospective employee understand that there is a policy or a job requirement that they may have to meet. They may also learn for the first time that their religious beliefs may butt up against a company policy. The dialogue will also tell the employer whether there is a need for accommodation. No, it won’t be easy to follow the Abercrombie decision, but HR professionals are up to the task.

Our interest in serving you

My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@ndlaw.com We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the June, 2015 Southwest Area Human Resource Association newsletter.