Who Must Raise the Topic of Religious Accommodation in the Workplace?


A&F logoI wrote recently about religious accommodation, but the Supreme Court arguments in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., last week keep this issue top of mind. The Abercrombie & Fitch case is one where I have sympathy with both the applicant and the employer.

The issue in this case is whether an employer has any duty under Title VII of the Civil Rights Act of 1964 to try to accommodate an employee’s or applicant’s religious practices if the employee or applicant doesn’t directly request an accommodation. In this case, a Muslim woman, Samantha Elauf, interviewed for employment with Abercrombie & Fitch wearing a hajib. Whether or not she was Muslim did not come up during the interview, but the employer assumed she was Muslim and decided not to hire her, because her appearance did not fit the “look” it wanted for sales employees in its stores.

hijabIt is a shame that this case has reached the Supreme Court. By all accounts, Ms. Elauf has had a successful career since Abercrombie & Fitch rejected her application. Most likely, Abercrombie & Fitch lost a good prospective employee by making a decision without discussing accommodation with this applicant. In fact, Abercrombie & Fitch later changed its policy to permit sales employees to wear hijabs, so the whole lawsuit might have been avoided had the issue been addressed before the retailer rejected Ms. Elauf’s application.

I am sympathetic to the applicant, because I believe that religious practices should be accommodated. As I stated in my February 16 post, this nation was founded to permit a diversity of religious beliefs, and we should give each other a little space to make that happen. The “look” policy, if strictly applied with no flexibility, might not have been the best practice from either a customer service or an employment perspective.

With respect to the specifics of the case, the hiring managers at Abercrombie & Fitch correctly perceived Ms. Elauf’s hijab to be an indication that she was Muslim. Therefore, the Supreme Court could easily rule that the employer should have done more before rejecting the applicant. The company should at least have raised the issue, as the EEOC argues. However, the challenge for the Court might be to do justice to Ms. Elauf without issuing broad rules of law that go beyond the intended scope of Title VII and could make managing a business more difficult.

There are many reasons why the employer’s position is also sympathetic. In my opinion, particularly for customer-facing employees—which retail sales employees are—an employer should be able to set appearance standards. Moreover, placing the burden on the employer to determine whether there might be a religious practice at stake, as the EEOC argued, goes beyond the capability of many hiring managers. How is any particular manager supposed to be aware of all religious practices—for example, whether a particular tattoo is religiously based or simply a style that an applicant likes? It is much more likely that the applicant will recognize when his or her religious practices might be an issue than that the employer representative will.

Moreover, many employers are legitimately concerned about mentioning religion at all during a hiring interview. Whether the applicant is or is not of a particular religion, the employer opens itself up to the possibility of a discrimination claim for “perceiving” the applicant to be of a protected group. Most Human Resources personnel and other management representatives have been carefully trained to avoid bringing up religion unless and until the employee does, and even then to handle the situation gingerly.

Also supporting the employer’s position in this case is that the standard for religious accommodation under Title VII has traditionally been quite low. Unlike under the Americans with Disabilities Act, where “reasonable accommodation” has placed some significant burdens on employers, under Title VII the only accommodations required have been those that do not impose more than a “de minimis” burden on the employer. So, even if Abercrombie & Fitch had raised the issue of Ms. Eleuf’s hijab, the retailer might not have had to change its “look” policy to accommodate her.

Nevertheless, it is quite possible, as the EEOC argued here, for the employer to have policies and procedures that the applicant does not know about—such as Abercrombie & Fitch’s “look” policy. It does not seem fair to make the applicant raise the issue of religion because there might possibly be a problem that the applicant knows nothing about. If employers do not need to discuss religion, why should applicants?

Thus, keeping the focus on the job—as Justices Sotomayor and Alito seemed to suggest during oral argument—might well be a workable solution. The hiring managers’ questions can ask about the job requirements and whether the applicant sees any problem performing them. Then, if religion might be an issue, the applicant can tell the employer what his or her religious beliefs require.

My advice to hiring managers was always to keep the focus on the job requirements.

How have you dealt with religious accommodation issues in the past? How do you feel about the issues raised in the Abercrombie & Fitch case?

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Filed under Diversity, Human Resources, Law, Management, Workplace

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