In a case decided on June 1, the U.S. Supreme Court ruled that even without direct knowledge of an applicant’s religious beliefs, an employer could be liable for discrimination for not accommodating those beliefs.
Facts of the Case
The case began when a 17-year-old applied for a job at an Abercrombie & Fitch store in Tulsa, Oklahoma. The applicant was a practicing Muslim and wore a hijab, or headscarf, when she was interviewed by the store’s assistant manager.
Court documents state that “using Abercrombie’s ordinary system for evaluating applicants,” the assistant manager gave the applicant a rating that qualified her to be hired. However, the assistant manager was concerned that the applicant’s “headscarf would conflict with the store’s ‘Look Policy,'” which is described as “classic East Coast collegiate style.”
The company’s dress code, which was detailed in its employee handbook, forbid the wearing of caps “as too informal for Abercrombie’s desired image,” according to the court. However, the dress code did not define the term “caps.”
After the interview, the assistant manager consulted a district manager to determine whether a headscarf would violate Abercrombie’s no-cap policy. As part of that discussion, the assistant manager said she believed the applicant wore the hijab because of her religion.
Is a Headscarf a Cap?
Court records indicate the district manager told the assistant manager that the applicant’s “headscarf would violate the Look Policy, as would all other headwear, religious or otherwise,” and directed that the applicant not be hired.
The EEOC took up the applicant’s case and charged Abercrombie with violating Title VII of the Civil Rights Act of 1964. This is the section of the law that “prohibits a prospective employer from refusing to hire an applicant to avoid accommodating a religious practice that it could accommodate without undue hardship,” the Supreme Court noted.
In 2011, the U.S. District Court for the Northern District of Oklahoma agreed with the EEOC and ordered Abercrombie to award the applicant $20,000 in damages. But Abercrombie won in its appeal in the U.S. Court of Appeals for the 10th Circuit. Subsequently, the U.S. Supreme Court agreed to hear the case.
“The parties concede that if (the applicant) sincerely believes that her religion so requires, (her) wearing of a headscarf is a religious practice. All that remains [to be decided] is whether she was not hired ‘because of’ her religious practice,” wrote Justice Antonin Scalia, the author of the opinion.
The opinion was 8 to 1, with Justice Clarence Thomas dissenting.
No “Knowledge Requirement”
In the quote above, the phrase “because of” is important. It frequently appears in anti-discrimination laws, including portions of the Civil Rights Act. “The rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward,” the Court opinion states. Specifically, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
The opinion acknowledged that it would’ve been easier to conclude that Abercrombie had discriminated against the applicant if she had explicitly asked for a religious accommodation (to have the dress code waived), and then been turned down for the job. But a request for an accommodation “is not a necessary condition of liability,” the ruling declares.
Neutrality Doesn’t Preclude Discrimination
Abercrombie argued that its dress code wasn’t aimed at any particular religious practice, and therefore couldn’t be deemed to be discriminatory. The Court disagreed. The law requires “otherwise-neutral policies to give way to the need for an accommodation” when a person’s practice of his or her religion is restricted, unless there is an undue burden. (EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86)
What Could this Mean for Employers?
The upshot of the opinion is that when reviewing job candidates or making decisions affecting current employees, employers should make a determination as to whether there is a religious basis for the person’s inability to meet a standard other employees are held to. If managers conclude that religious factors are involved, they should determine what kind of accommodation is feasible before taking any action.
Employers can’t try to simplify matters by asking job candidates or employees about their religious practices. Such questions could set an employer up for a religious discrimination claim down the road if an individual feels personnel actions were based on the fact that an employer had knowledge of his or her religious beliefs.
It’s a tricky balancing act, but one that employers have to perform. Consult with your attorney before making employment decisions that might be perceived as discriminatory.