A recent ruling by the U.S. Supreme Court decided whether it’s an employer or employee who should “go first” in bringing up the need for religious observance on the job.
In 2008, a Muslim woman named Samantha Elauf applied for a job at Abercrombie & Fitch. She didn’t get it because the headscarf that she wore consistent with her religious beliefs conflicted with Abercrombie & Fitch’s “Look Policy” for its salespeople. The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, claiming that Abercrombie violated the Civil Rights Act, which prevents a potential employer from refusing to hire because of an applicant’s religious practice, when it could be accommodated without undue hardship.
A lower federal court ruled in favor of the EEOC, but an appellate court reversed, saying that a business is only liable when the job applicant provides actual knowledge of the need for accommodation. The Supreme Court, though, in an 8-1 decision said that a job applicant only needs to show that her need for an accommodation was a “motivating factor” in the employer’s decision. The bottom line is an employer cannot make a potential employee’s religious practice a factor in its hiring decisions and it has to try to make a religious accommodation, since the employer would know better if there could be a conflict with its own policies.
So, what does this mean for businesses? The Supreme Court flat-out rejected Abercrombie’s claim that it did not violate the law since Elauf did not tell the interviewer of her need for religious accommodation, especially when Abercrombie admitted that it was under the impression that she was wearing her headscarf for religious reasons. Not only does this mean that an applicant does not need to request a religious accommodation at the onset, it means that if the employer even thinks the applicant needs one and does not hire her for that reason, it is liable for discrimination.
Any business that demands a certain kind of appearance or dress should reevaluate its hiring policies to make sure that interviewers have the proper education and training about outward expressions of religious belief to detect potential problems – and avoid them. With the collaboration of Kieu-Nhi Le, Rutgers School of Law Newark candidate for a JD degree in May 2016. She is the Managing Business Editor of the Rutgers Computer and Technology Law Journal.