United States: Don't Ask, Don't Tell? When It Comes To Religious Accommodation, The Supreme Court Offers Guidance (Well, Sort Of… )

What if it looks like someone may need a religious accommodation, but the individual never asks? Does the company still have a duty to accommodate? In a much awaited opinion, the Supreme Court, in an 8-1 decision, determined that "they never asked" does not necessarily let an employer off the hook. Employers subject to Title VII and many state and local laws are required to make reasonable accommodations to an employee's or applicant's religious beliefs or practices, unless doing so would impose an undue hardship on the business. The question the Supreme Court addressed was when and how should an employer realize it has the obligation to explore reasonable accommodation for religious belief or practices. The court's answer provides some guidance for employers going forward, but also leaves many questions unanswered.

The case goes all the way back to 2008, when a 17-year-old Samantha Elauf applied for a sales position at the company's Tulsa, Oklahoma store. Ms. Elauf is a practicing Muslim and, consistent with her faith, she wore a headscarf or "hijab" to the interview. During her interview, she never mentioned her religion or that she wore the hijab for religious purposes. Likewise, the interviewer did not mention the hijab or ask about religion. Although the interviewer gave the applicant a favorable evaluation, the company ultimately did not hire her because she lacked the "look" as set forth in its "Look Policy," which prohibited "caps." This decision set off years of legal proceedings, culminating in the recent Supreme Court decision.

The U.S. Equal Employment Opportunity Commission (EEOC) argued the case on behalf of the applicant and contended that because she wore the headscarf in keeping with her Muslim faith, the store violated the law by failing to explore modifications of its Look Policy. The store disagreed, countering that because the applicant never stated she wore a headscarf because of her religion and never asked for an accommodation, it had no duty to modify its dress code. Although the trial court found in favor of the applicant, awarding her $20,000 in damages, the Tenth Circuit Court of Appeals reversed that award, agreeing with the company that when a religious accommodation is not specifically requested, the company has no duty to provide one.

Last week's Supreme Court decision rejected that argument. The court concluded that an employee's (or prospective employee's) failure to explicitly mention their religious beliefs or practices does not necessarily absolve an employer of the duty to explore accommodations. Instead in situations like the applicant's — where the assistant manager admitted that she assumed the applicant wore a headscarf because of her faith — the company could not rely on the lack of an accommodation request as a defense.

While this ruling clarified the specific applicant's situation, the Supreme Court left many questions unanswered, including:

  • Whether requiring strict adherence to the dress code would have constituted undue hardship on the store?
  • What types of accommodations should or could have been explored?
  • When is an employer deemed to have sufficient knowledge that a religious accommodation may be in play?
  • Can an employer ask further questions if they have reason to believe that religion may be an issue? If so, what types of questions? This is particularly important, because as a general rule, interview questions about religious beliefs are "off-limits."

Although the case does not settle these questions, employers should take note of the Supreme Court's recent opinion. Companies should not assume that because an individual does not ask, religious accommodation is not a concern. Specific steps you can take right now include:

  • Do not try to be a religious scholar — focus on job duties and business needs

When interviewing, focus on the candidate's ability to do the job, not the specifics of religion. For example, if an employee says they need time to pray during the workday, ask questions involving what times of the day will be involved, whether there can be flexibility in times, and whether work can be made up during other times of the day.

Do not ask questions about the specific religious denomination that requires prayer, the Bible verses they believe require them to pray, or the name of the house of worship which they attend.

  • Treat all religions equally

When considering accommodations, treat all religions equally. If you accommodate a Sikh employee's request to wear a beard for religious reasons, you will be hard pressed to rely on your grooming policies to deny a similarly situated Muslim or Jewish employee's religious-based request to wear a beard.

  • Review your policies

As the recent case demonstrates, grooming and dress code policies raise particularly complex issues when it comes to religious accommodation. Employers should review seemingly neutral policies in order to ensure that there are no unintended pitfalls or barriers to religious accommodation.

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.

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