On June 1, 2015, the United States Supreme  Court handed down a decision clarifying the circumstances under which employees and prospective employees can establish religious discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). See Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015).

In this case the Equal Employment Opportunity Commission (“EEOC”) brought suit against the retailer Abercrombie & Fitch (“Abercrombie”) on behalf of Samantha Elauf, a practicing Muslim woman who wore a black hijab — a headscarf traditionally worn to show modesty — to her  job interview. Wearing a headscarf violates Abercrombie’s “Look Policy,” which prohibits employees from wearing black clothing or “caps.” Although Ms. Elauf otherwise received positive reviews, her interviewer allegedly assumed that she wore the hijab for religious reasons despite the fact that she never mentioned her religion or the need for a religious accommodation to the Look Policy. Ultimately, Abercrombie declined to hire her because her headscarf violated the Look Policy. The EEOC claimed this amounted to disparate treatment because Abercrombie failed to make an exception to its Look Policy and hire Ms. Elauf, notwithstanding the retailer’s lack of actual knowledge that she wore the hijab for religious reasons.

Title VII prohibits employers from refusing to hire a job applicant “because of” his or her religion, including a religious practice (such as wearing a hijab), when the applicant can be accommodated without undue hardship to the employer. 42 U.S.C. § 2000e-(2)(a), (j). Reversing the Court of Appeals for the Tenth Circuit, the Court held that to succeed on a disparate treatment claim, a job  applicant need not prove that the employer had “actual knowledge” of the applicant’s need for a religious accommodation but rather only that the individual’s need for an accommodation was a “motivating factor” in the challenged employment decision. Put simply, an employer’s assumption concerning an applicant’s religious practice may not be a motivating factor in an employment decision.

In the wake of this decision, employers find themselves in a “Catch-22.” Employers are discouraged from directly inquiring into an applicant’s religious beliefs because such inquiries could result in disparate treatment claims; yet if they do not inquire, they are forced to make assumptions as to whether accommodations are necessary or feasible when making employment decisions — a practice barred by the Court’s holding. For this reason, employers are advised to take proactive measures to avoid litigation. Below are some tips for getting started:

  • Affirmatively Discuss Policies and Job Requirements With Applicants: While it is not prudent to directly ask an applicant about his or her religion, it is appropriate, when an interviewer suspects that an applicant may need a religious accommodation, to make company policies and essential job requirements clear and to ask the applicant if he or she believes he or she can comply. This neutral practice places the applicant on notice of the employer’s policy and provides the applicant with an opportunity  to raise conflicts without the employer directly asking about the applicant’s religion during an interview. Should an applicant raise a concern, the interviewer should engage in an interactive process to see whether an accommodation can be reached, and then should document that process in writing.
  • Revise Job Descriptions: Revise job descriptions to ensure they contain information about relevant policies and essential job requirements; include a statement that accommodation requests should be made to the employer’s Human Resources department. Job descriptions that include this information not only place an applicant on notice of the potential need for an accommodation but also provide him or her with an avenue through which to inquire about an accommodation and relieve the interviewer of the need to respond on the spot to inquiries concerning accommodations.
  • Involve Human Resources: Human resources professionals tend to be well-versed in equal employment opportunity issues and experienced in handling difficult conversations. It therefore  is worthwhile to encourage managers and other employer-interviewers who are unsure how to handle sensitive situations to involve Human Resources rather than address them on their own.
  • Increase Training: Religion is a difficult subject to discuss under even the most comfortable circumstances. Consider providing interviewers and Human Resources personnel with additional training to address how and when to inquire about religious accommodations during an interview or further along in the hiring process; role-playing these awkward conversations may also help these professionals become more comfortable in real-life situations.
  • Reconsider Image-Based Policies: While neutral policies that regulate appearances are not per  se illegal, they can invite litigation because they single out individuals based on their appearance, which may stem from a religious practice, such as wearing a yarmulke, hijab, or cross necklace or growing a beard. These kinds of policies could also expose an employer to age or disability discrimination claims. Accordingly, employers are encouraged to revisit these policies in the wake of Abercrombie and consider whether or not they are truly necessary.