Religion and Hiring in the Wake of Abercrombie

Abercrombie.BlogAs we reported in our June 1, 2015 Hot Topics, the U.S. Supreme Court recently issued its decision in EEOC v. Abercrombie & Fitch Stores, Inc. (U.S. 2015). The case involved a young Muslim woman (Samantha Elauf) who was not hired as a sales associate by Abercrombie because she wore a hijab (headscarf) to the interview.  Neither Ms. Elauf nor the hiring manager raised the issue of the hijab or of Ms. Elauf’s religion during the interview, but the interviewer admitted she assumed Ms. Elauf was Muslim because of the headscarf and was concerned the headscarf would conflict with the store’s “Look Policy” of no “caps.” For that reason, Ms. Elauf was not hired.  

At trial, the EEOC successfully argued that Abercrombie failed to accommodate Ms. Elauf’s religious beliefs. But the Tenth Circuit reversed the lower court, holding that the EEOC failed to establish that Ms. Elauf had notified the employer about the conflict created by the religious belief. An employer’s obligation to provide accommodation, the court said, was triggered only when it received actual notice from the applicant that a religious accommodation would be required.

The U.S. Supreme Court agreed to hear the case specifically on the issue of what knowledge an employer must have to trigger its obligation to evaluate religious accommodations. In an 8-to-1 decision in favor of the EEOC, the Court held that in Title VII disparate-treatment claims, actual knowledge by the employer is not required. Instead, “a job applicant ‘need only show that his need for [religious] accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.’”  

Although the Abercrombie decision seems straightforward (due, in part, to cooperative facts), the implications for employers aren’t so clear. We are left to wonder how employers become proactive about accommodating religion (which is clearly the message from the Court) while minimizing legal exposure for inquiring about religious beliefs and negating any suggestion of illegal motive. Although the case did not saddle employers with new duties or give specific practical guidance, it does offer insight on improving practices. For example:

FOCUS: Employers’ focus needs to be on whether an accommodation is possible, not on how to avoid making an accommodation. Employers should actively work to make exceptions to their neutral employment policies in order to accommodate religious practices.

POLICY: Employers should implement a comprehensive policy on religious accommodation and a procedure for implementing the policy’s assurances.

JOB DESCRIPTIONS/JOB POSTINGS: Employers should revise job descriptions and job postings taking care to clearly identify essential job functions and policies, including scheduling requirements, use of PTO, dress codes, and other areas typically impacted by religious accommodations. This is especially important for positions where common types of religious accommodations (dress codes, time off, etc.) might be difficult or even impossible to provide.

EDUCATION/TRAINING: Hiring managers need to be educated about the obligation to provide religious accommodations and trained to think about the need for religious accommodation—whether known or suspected—the same way they think about an applicant’s race, color, sex, or national origin: as a non-issue.

INTERVIEWS: Hiring managers and interviewers should be trained on the “dos” and “don’ts” during an interview.

  • Don’t point-blank ask an applicant about their religion, period.
  • If an interviewer suspects an applicant may have a conflict with a policy or job function due to religion (either by an employee’s appearance or some other non-verbal cue) the interviewer should make the company policies and essential job requirements known to the applicant and inquire if the applicant can comply.
  • If the applicant indicates they can comply, the conversation on this topic ends.
  • If the applicant indicates they cannot comply, the interviewer can ask “why,” which is not considered inquiring into their religion.
  • If the applicant indicates they have a conflict based on their religion, the interviewer may ask what they need in order to comply. The interviewer would make note of the applicant’s need/request either for their own post-hire consideration, or to pass along to HR for further analysis.

HIRING DECISIONS: If the employer hires the applicant who identified an accommodation in the interview, then the groundwork will already be set for the accommodation process. If the employer does not select the applicant then the rejected applicant can be told the true reason for the rejection, be it that another had superior qualifications or the undue hardship involved with accommodating the applicant’s religion. 

HR should close the loop with rejected candidates and respond to their requests with the appropriate, nondiscriminatory reason for the decision not to hire.