In early June, the Supreme Court of the United States ruled in favor of a job applicant who was denied employment because of concerns that her headscarf, worn as part of her religious obligations, would violate the employer's dress policy. In an opinion authored by Justice Scalia, the Supreme Court rejected the employers' position that the applicant needed to request a religious accommodation before a violation of Title VII of the Civil Rights Act of 1964 ("Title VII") could be found.
Abercrombie & Fitch Stores, Inc. ("Abercrombie") operates several lines of clothing stores, each with its own "style". Abercrombie imposes a dress policy that governs the employees' dress, consistent with the image the store is trying to project. After being interviewed by an Abercrombie assistant store manager, the applicant was recommended for hiring; but the assistant store manager included a notation that she was concerned the applicant's headscarf would conflict with the dress policy. The assistant store manager also opined that the applicant wore a headscarf for religious reasons. The Abercrombie district manager informed the assistant manager that the headscarf would violate the dress policy and directed the assistant manager not to hire the applicant. The Equal Employment Opportunity Commission ("EEOC") filed suit.
The Supreme Court rejected that "actual knowledge" of a "need" was a required element of a Title VII violation. Rather, the Court focused on the fact that Abercrombie failed to hire the applicant "because of" her religion. Importantly, the Court stressed that the "because of" standard (i.e. because of race, because of religion, etc.) prohibits the employer from considering the protected characteristic in its employment decision.
Unless there is an undue hardship, an employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions. Because Title VII does not include knowledge as a required element, as does the Americans with Disability Act, the Supreme Court would not add the words to the law to produce "what is thought to be a desired result".
What We Can Learn
Abercrombie's most striking error in this case was not that it failed to hire an individual in a protected class. Rather, Abercrombie created a protected class, where none may have previously existed, and made a hiring decision based on its assumption. The applicant did not identify herself as either a member of a particular religion and did not inform Abercrombie that she intended to wear a headscarf at work. She merely attended an interview wearing a headscarf.
Abercrombie interpreted the headscarf as a religious obligation. Abercrombie then assumed that the applicant would wear the headscarf in the store. Before confirming its impressions and before discussing the issue with the applicant, Abercrombie relied on its impressions and denied employment because of its perception of the applicant's religious beliefs.
How to Respond to the Decision
Although the underlying law remains unchanged, the Supreme Court makes clear that any consideration of religious accommodations in making employment decisions opens the employer to claims of a Title VII violation. Protected characteristics or accommodations should not be considered in making employment decisions. Additional proactive steps can be taken to reduce the potential for unintended discrimination:
1. Policy Review.
Employers should make sure their employment policies are flexible enough to allow for religious accommodations. For example, dress code policies should allow for accommodations to be made for religious practices. Hiring policies should also be reviewed to ensure that protected factors are not being considered in making employment decisions.
2. Training.
Employers should implement training programs for all hiring personnel, including front-line managers, regarding appropriate reactions to employment situations. Unintentional notations or responses regarding religious accommodations, or other protected characteristics, can unnecessarily create the appearance of discrimination and complicate the defense of such claims.
3. Documentation and Communication.
Key documentation of job-related qualifications, permissible factors being considered, and the basis of employment decisions is necessary. Appropriate communication to all levels of employees regarding these decisions is also vital to ensure compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
