In the March 12, 2015 edition of The Legal Workplace Grind, we discussed oral argument before the U.S. Supreme Court in the case of Equal Employment Opportunity Commission vs. Abercrombie & Fitch. While we correctly predicted the High Court would rule in favor of the employee on whose behalf the EEOC sued the clothing retailer, my characterization of that case as one presenting tough legal questions was apparently misguided.
Last week, before delivering the opinion of the Court, Justice Scalia remarked, “This is really easy”.
Head Scarfs Are Not The Abercrombie Look.
Samantha Elauf, a 17-year old practicing Muslim, applied for a sales position at an Abercrombie store. She appeared at her interview wearing a hijab – a Muslim headscarf. No mention was made of the head scarf, religion or Abercrombie’s dress code. The interviewer rated Ms. Elauf as hire eligible. However, an Abercrombie district manager pulled the plug on Ms. Elauf’s hire because the head scarf – which Abercrombie correctly assumed was worn for religious reasons – would conflict with its dress code prohibiting any headwear.
The district court ruled Abercrombie’s conduct was discriminatory and a jury awarded Ms. Elauf $20,000. However, an appeals court overturned that decision and ruled in favor of Abercrombie. It concluded that because Ms. Elauf did not make Abercrombie aware of her religious beliefs or any needed accommodation, Abercrombie lacked the requisite knowledge to support a finding of unlawful discrimination on the basis of religion.
Religious Discrimination Includes Beliefs, Observances and Practices.
The Supreme Court explained that under Title VII “religion” is defined to “include all aspects of religious observance and practice, as well as belief” and that an employer must accommodate a religious observance or practice, unless it would cause an undue hardship on the business.
It was undisputed that Ms. Elauf’s headscarf was a religious practice. The question was whether Abercrombie had refused to hire Ms. Elauf because of her religious practice.
Writing for the 8 member majority Justice Scalia explained that in order to prove employment discrimination on the basis of religion, it is not necessary to show that the employer had actual knowledge of the need for a religious accommodation. Rather, unlawful discrimination occurs when a decision is motivated by discrimination against a religious belief, observance or practice – in this case the desire to avoid a religious accommodation of Ms. Elauf’s head scarf – even when that decision it is based upon an “unsubstantiated suspicion”.
The Pitfalls of Assumptions and Suspicions in Employment.
The Supreme Court presented a straightforward rule in cases alleging a failure to accommodate a religious practice: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.
Several commentaries published since the issuance of the Court’s decision speculate that employers will be held liable for religious discrimination even where decisions are made without any knowledge whatsoever of an employee’s religious beliefs or practices. Others comment that employers skate on thin ice if they ask about an employee’s religion to ascertain whether an accommodation is required.
The problems with Abercrombie’s case was it assumed (remember what Felix said happens when we assume) Ms. Elauf’s religious practices would conflict with its dress code, never addressed the concern with her and refused her employment because of that religious practice.
As suggested in my prior post on this case, Bronx native and lifelong Yankees fan Justice Sonia Sotomayor hit a home run during oral argument when she posed an obvious solution to this balancing act: why not just inform the applicant of the policy and simply ask, “You have a problem with that?” Problem solved in a New York minute.
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Ralph A. Somma is a Long Island, NY employment lawyer who handles cases involving discrimination in the workplace.
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