EMPLOYERS MUST TAKE THE HINT AND TAKE INITIATIVE

U.S. Supreme Court Decision Warns that Companies Ignore at Their Peril Possible Need to Permit Religious Exceptions to Workplace Policies

The U.S. Supreme Court’s June 1, 2015 decision in Equal Opportunity Employment Commission v. Abercrombie & Fitch Stores, Inc. requires employers to take special initiative to accommodate religious practices that may conflict with office policies. The decision illustrates the particularly delicate and potentially conflicting duties of management to deal with such issues.

Retailer Abercrombie maintains multiple and distinct clothing lines, dictating that employees comply with a “Look Policy” governing dress, including a prohibition on “caps.” Job applicant Samantha Elauf is a practicing Muslim who wears a headscarf in public as her faith directs. She was otherwise qualified for an Abercrombie position. However, when informed that Ms. Elauf wore the scarf because of her Muslim faith, the district manager directed her application be denied because all headwear, regardless of its purpose, violates the Look Policy.

The Equal Employment Opportunity Commission (EEOC), responsible for enforcing the Civil Rights Act of 1964 (“Title VII”) and other federal workplace anti-discrimination laws, sued Abercrombie on Ms. Elauf’s behalf.

Abercrombie contended that it had no duty to consider an accommodation of Ms. Elauf’s religious practice of a headscarf because she had not actually informed the company of her need for such an accommodation. A seven justice majority disagreed. Observing that the store’s assistant manager had informed the district manager that “she believed Elauf wore the headscarf because of her faith,” the Court ruled Abercrombie would be in violation of Title VII for the district manager’s refusal to hire her over her potential need for accommodation.

Abercrombie asserted that it had done nothing wrong – and was thus not liable for intentional discrimination — because the district manager had not treated a religious adherent any less favorably than any applicant who sought to wear a headscarf on the job on non-religious grounds. Yet, the Court observed that management’s “mere neutrality” toward religious practices is not enough. Federal Title VII gives religious practices “favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of that individual’s’ ‘religious observance or practice’.”

Thus, where an applicant or employee makes some indication that his or her actions contrary to policy may be based on religious faith – articles of clothing or personal appearance contrary to a company dress code perhaps the most obvious example – the Abercrombie decision directs business to originate communication to determine if such a religiously based conflict actually exists.

However, as illustrated by the several views Supreme Court justices expressed during Abercrombie’s February 25, 2015 oral argument, just how an employer may broach the subject of possible religiously based conflict is delicate. Asking straight out, for example, whether a headscarf or a hat is a person’s religious practice may violate state or federal standards barring probing questions about an applicant’s or employee’s religion. Thus, Justices Sotomayor and Alito suggested neutral questions that would in effect invite the applicant or employee to bring up any religious conflict at his/her option. Thus, an employer could properly inform an applicant of a company dress or grooming code and ask the person if he/she could comply or possibly had any problem. The question makes no mention of religion and puts it to the applicant to raise religion if, of course, it was important enough to the person to do so.

If and when the applicant or employee puts a religious objection on the table, it is then appropriate and required for management to seek to find a reasonable accommodation for the religious practice. This is what makes the Abercrombie decision so touchy. Ms. Elauf did not actually put out the religious objection. Yet, when there was at least indication of a potential conflict, the Court directs that Abercrombie should have found out if she actually had one.

On the ensuing inquiry to find reasonable accommodation, only where accommodation choices would impose undue economic or operational hardship is the company justified in requiring the worker to forgo the religious practice as an employment condition. See also, Employer Duties to Fight Religious Prejudice and Religious Dress and Grooming and Employers’ Increased Duties to Accommodate.

For more information on this subject, contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Helena Kobrin, June 10, 2015