BY AMY ROBINSON
The U.S. Supreme Court just issued its decision in EEOC v. Abercrombie & Fitch Stores, Inc, siding with the Equal Employment Opportunity Commission (EEOC). The Court found that a prospective employer can be liable for intentional religious discrimination if it refuses to hire an applicant because of the applicant’s religious practices when the practice could be accommodated without undue hardship. (See, EEOC v. Abercrombie & Fitch Stores, Inc., Slip No. 14-86, June 1, 2015). In the case at issue, Abercrombie refused to hire an applicant named Samantha Elauf, who was a practicing Muslim that wore a headscarf (known as a hijab) to her interview. According to the facts presented by the EEOC, who pursued the case on her behalf, the store manager talked to the district manager and indicated that she was inclined to hire Ms. Elauf but needed to know if the headscarf would violate the corporate “Look Policy.” The policy apparently prohibited “caps,” which was a term that was not clearly defined. The district manager took the position that the headscarf would constitute a cap and violate the “Look Policy,” and directed the store manager not to hire Ms. Elauf.
Under federal discrimination law, employers are prohibited from both making employment-related decisions on the basis of a person’s religion, as well as failing to accommodate a religious practice that does not impose an undue hardship to the employer. Abercrombie attempted to defend on the basis that (1) it was not aware of Ms. Elauf’s religion when it decided not to hire her so could not have intentionally discriminated on that basis, and (2) the applicant would have needed to request a religious accommodation at the time of the interview to trigger any protection. The Court found neither argument persuasive. Speaking for the 8-1 majority, Justice Scalia confirmed: "an employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."
So what does this mean to you as an employer in the Pacific Northwest?
As we have said before, we typically advise employers not to discuss an applicant's religion, or other protected status, particularly in the interview stage, to avoid even the appearance that it was any factor in the employment decision. We also recommend that interviewers are made aware of these limitations and properly trained, so they can be prepared to shepherd the interview discussion accordingly. Oftentimes, a prepared list of questions that has been properly vetted by HR and/or counsel can be a great way to stay out of hot water.
This case also serves as a reminder that employees are entitled to accommodation of religious practices, provided they don’t pose an undue hardship to the employer. It’s worth noting that the threshold for religious accommodation is even lower than the right to accommodation for disabilities, which requires in addition that the accommodation be “reasonable,” and even lower from the right to accommodation for pregnancy-related conditions, which requires that the accommodation be at least the same as what any other employees with similar work restrictions may be provided. Given these complexities, it’s even more important than ever to make sure your leadership is aware of these obligations, appropriately prepared to provide required accommodations, and to navigate these kinds of potentially delicate discussions.