By Judy Greenwald, Crain News Service
WASHINGTON (June 8, 2015) — Employers will have to train their hiring managers to ask questions about potential workers' possible need for accommodation based on religious needs if it is apparent it may be needed, based on the U.S. Supreme Court's ruling on the issue June 1.
The Supreme Court's 8-1 ruling in Equal Employment Opportunity Commission (EEOC) vs. Abercrombie & Fitch Stores Inc. requires employers to essentially discern whether an accommodation is needed — even when the applicant himself or herself does not raise the issue, and then to avoid using that as a motivating factor in the hiring decision.
Attorneys warn that while in many cases the need for religious accommodation may be obvious, in others there will be uncertainty.
The origins of the case occurred in mid-2008, when then-17-year-old Samantha Elauf, a practicing Muslim who wore a hijab — a head scarf — applied for a job as a sales floor employee with the New Albany, Ohio-based retailer's Abercrombie Kids store in Woodland Hills Mall, Tulsa, Okla., according to court papers. Ms. Elauf never informed the chain that she was obligated by her religion to wear the head scarf.
At the time Ms. Elauf applied, Abercrombie had a “look policy” that prohibited employees from wearing “caps.” The chain decided not to offer Ms. Elauf the job after internal discussion about her head scarf.
The EEOC filed a lawsuit on her behalf, charging religious discrimination under Title VII of the Civil Rights Act of 1964. After the U.S. District Court in Tulsa ruled the EEOC could pursue the lawsuit in 2011, a jury awarded Ms. Elauf $20,000 in compensatory damages in the case. Abercrombie appealed the ruling.
In 2013, the 10th U.S. Circuit Court of Appeals in Denver reversed the ruling, and awarded Abercrombie summary judgment on the basis that Ms. Elauf had never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious belief.
In its decision June 1 overturning that ruling, the Supreme Court said it disagreed with Abercrombie's argument that a potential employer first has to show “actual knowledge” of the applicant's need for an accommodation before it can be accused of disparate treatment.
“We disagree,” says the ruling. “An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions.” It is “not a necessary condition of liability,” said the high court, in remanding the case back to the 10th Circuit to determine whether its summary judgment had been appropriate in light of the Supreme Court's ruling in the case.
“This ruling protects the rights of workers to equal treatment in the workplace without having to sacrifice their religious beliefs or practices,” EEOC Chair Jenny R. Yang said in a statement.
Abercrombie said in a statement that the decision did not determine that the chain discriminated against Ms. Elauf, and that it will determine the next steps in the litigation.
The company “remains focused on ensuring the company has an open-minded and tolerant workplace environment for all current and future store associates,” it said.
Abercrombie said also that it has since changed its dress code policy to allow associates to be “more individualistic,” among other changes, and that it has granted “numerous religious accommodations when requested, including hijabs.”
Commenting on the ruling, C.R. Wright, a partner with law firm Fisher & Phillips L.L.P. in Atlanta, said “Employers are now going to have to speculate about whether something they see that might be potentially religious dress or having bearing on some type of a religious practice is in fact a religious issue which might require accommodation.”
Observers say while in this case and many others the need for religious accommodation may be obvious, in some cases there may be ambiguity.
An example might be a case where a Jewish Orthodox woman comes in for a job interview in December wearing a long skirt and sleeves covering her elbows, which is required by her religious observance, where it might not be obvious she was doing so for religious reasons, said Jonathan T. Hyman, partner with law firm Meyers, Roman, Friedberg & Lewis in Cleveland.
This report appeared on the website of Crain's Business Insurance magazine, a Chicago-based sister publication of Tire Business.