There is a traditional defense to claims of unequal treatment: lack of knowledge. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ____ (June 1, 2015), that too was the employer’s defense.
The case involved Samantha Elauf, a Muslim woman, who was denied a job for wearing a hijab(headscarf) to her job interview. She neither volunteered any information about it being a religious obligation nor was she asked about its religious significance. Rather, Abercrombie simply rejected her for the position because her headscarf violated Abercrombie’s corporate “Look Policy,” which dictates a dress code and specifically prohibits employees from wearing “caps” while working.
The Supreme Court granted certiorari to answer whether Title VII prohibits a prospective employer from refusing to hire a job applicant to avoid accommodating a religious practice only when an applicant has explicitly informed the prospective employer of the need for such accommodation. In a decision that was near-unanimous (8-1), it concluded that knowledge was not a prerequisite to liability:
An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
This holding does not foreclose lack of knowledge as a defense to other types of discrimination or mean that neutral rules are now fair game for intentional discrimination claims (“disparate treatment” in Title VII parlance) in all types of discrimination. Rather, this is a function of the unique issues triggered in accommodation cases:
Abercrombie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices … Rather, it gave them favored treatment….
Here, just as in the Supreme Court’s recent decision on accommodating pregnancy (Young v. United Parcel Service, Inc., 575 U.S. ___ (March 25, 2015)), the equality paradigm inexorably shifts for issues of accommodation; there, equality is not enough.
Accommodations require a more perspicacious analysis from managers
What happened at Abercrombie is a case study in why an equal treatment mindset is insufficient. There, when “Cooke [the assistant manager] informed Johnson [Abercrombie’s district manager] that she believed that Elauf wore her headscarf because of her faith,” Cooke was told “that Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise” so she was directed not to hire Elauf. See also, Justice Alito’s concurrence at fn. 2 for a more fulsome description of the actual summary judgment record.
Given that record, the Supreme Court’s decision confirms what lower courts have implied:
- A Middle Eastern-looking applicant with a beard applies for a job that requires men to be clean-shaven when working with toxic fumes. The employer should ask whether the employee would have a problem shaving his beard to wear a sealed gas mask. Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382 (9th Cir. 1984) (employer reasonably accommodated Sikh machinist whom it transferred to janitorial position after he stated that his religion precluded him from complying with safety policy requiring shaving of any facial hair that would prevent employees from achieving gas-tight face seal when wearing respirator).
- An applicant states he will need a long weekend once a year to attend a convention. The employer should ask about the general nature of the convention, and if the convention is for a religious belief, then reasonably accommodate the candidate once he is hired. California Fair Employment & Housing Commission v. Gemini Aluminum Corp., 122 Cal.App.4th 1004 (2004) (employer failed to reasonably accommodate Jehovah's Witness scheduled to attend a religious convention).
- A job applicant for airline attendant requests for time off during the Passover holiday. The employer should reasonably accommodate the candidate once she is hired. Soldinger v. Northwest Airlines, Inc., 51 Cal.App.4th 345 (1996) (employer’s response, “Well, what makes you think it's more important for you to have your holiday off than someone celebrating Easter?" is not reasonable accommodation for religious belief).
Three steps to consider
Employers dealing with job applicants may think themselves caught between a rock and a hard place because the EEOC has elsewhere taken the position that an employer’s pre-employment inquiries into an applicant’s religious beliefs may give rise to an inference of discrimination and are not an appropriate part of the hiring process. There is, however, a viable protocol:
- Ask the right questions. Employers should design questions that can elicit necessary information, such as questions about availability to work on weekends and ability to adhere to dress codes, without any explicit reference to an applicant’s religious practices. Employers should ask these questions to all applicants to avoid any inference of discriminatory intent. Elauf, for example, should have been asked if she could honor the “no caps” rule and, if not, why not. Assumptions either way are out of place.
- Educate hiring managers and decision-makers. Employers should ensure that those responsible for conducting interviews and making hiring recommendations/decisions are aware of potential pitfalls and know which questions to ask − and which to avoid. Most importantly, managers need to know that equal treatment alone is not enough; employment discrimination sometimes (disabilities, pregnancy, and religion) requires more.
- Decide what is truly important. In Abercrombie, inherent in the Court’s opinion is the assumption that it would not have been an undue hardship to make an exception to the Look Policy and hire a woman who wears a headscarf (although the Court expressly declined to address the defense of undue hardship). Some policies, however, need not be accommodated: be ready to draw the necessary lines (remembering that the burden for undue hardship under Title VII is far lighter than under the Americans with Disabilities Act).
This type of approach is not only critical for compliance with federal law. California, for example, has amended its Fair Employment and Housing Act to require workplace dress and grooming standards to be flexible enough to take into account “religious dress” and “grooming practices,” including “the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed.” Thus, this recommended three-step approach will enhance compliance with such state laws as well.