Bernadette Starzee, The Daily Record Newswire
In a June decision, the U.S. Supreme Court ruled against Abercrombie & Fitch Stores in a religious discrimination claim – a result that has far-reaching implications for employers.
The case – the U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch – concerned a 17-year-old girl named Samantha Elauf who applied for a sales floor position in an Abercrombie store in Oklahoma. Elauf, a Muslim who wears a hijab for religious reasons, said Abercrombie denied her the job because her religious headscarf did not comply with the company’s “look” policy, which prohibited caps.
The EEOC sued Abercrombie on behalf of Elauf, claiming the company violated Title VII of the Civil Rights Act of 1964 by refusing to hire her. A lower court found in favor of Abercrombie, but the Supreme Court, by an 8-1 margin, sided with the EEOC.
Elauf did not mention the headscarf or that she would need an accommodation from the company’s look policy during her interview. But her interviewer mentioned the hajib to her district manager, who told her to lower Elauf’s rating on the appearance section of the application, which decreased her overall score to the point that she wasn’t hired.
While the interviewer assumed Elauf was Muslim, Abercrombie argued that it did not have actual knowledge of the applicant’s religion and therefore could not be held liable under Title VII. Abercrombie said employees and applicants must tell employers if they need accommodations.
The Supreme Court, however, said Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that could be accommodated without undue hardship. The court said the rule applies even if the employer doesn’t have actual knowledge of the applicant’s religion; an applicant need only show that her need for accommodation was a motivating factor in the employer’s decision.
“If the need for an accommodation is a motivating factor in the decision not to hire someone, this constitutes intentional discrimination,” said A. Jonathan Trafimow, a partner and chairperson of the employment law practice group at Moritt Hock & Hamroff in Garden City. “For instance, if an employer thinks an applicant may be an Orthodox Jew and thinks he would be unable to work on Saturdays for that reason, and the employer’s desire to avoid the accommodation results in not hiring that person, this violates Title VII.”
One of the major takeaways of the Abercrombie case is that “the employer can’t plead ignorance” with regard to an applicant’s religion, said Howard Wexler, a senior associate in the labor and employment group at Seyfarth Shaw in Manhattan, who recommends the interviewer make the applicant aware of the company’s policies – such as dress codes or days and hours that must be worked – and ask if they would propose any problems to the applicant.
“If they say, ‘No,’ there’s no need to challenge it,” Wexler said. “If they say, ‘It might be a problem for me,’ ask why it might be a problem.” If the applicant says, “I like to wear things on my head,” no accommodation is necessary. But if the applicant says he wears certain attire for religious reasons, the employer should “engage in some kind of interactive process, to see if there is a way the applicant can be accommodated,” Wexler said.
Besides attire, common accommodations employees may need include taking certain days or times of the day or year off for religious observances, or, for those working in food service, avoiding handling certain foods.
The Abercrombie case has “increased awareness among individuals of their rights and employers’ obligations as they relate to religious accommodations,” said Kimberly Malerba, chairperson of the employment law practice group at Ruskin Moscou Faltischek in Uniondale.
When making any kind of employment decision – whether to hire, promote or demote an employee – it’s key to have objective criteria in place, Malerba said, noting that everyone involved in the process, including managers and interviewers, must understand the criteria.
“You can point to the objective criteria if someone claims they were not hired for an improper reason, so you can show the issue of whether or not someone needed an accommodation was a nonfactor,” she said.
Employers need to recognize that exceptions may have to be made to their policies. A policy against hats, for instance, is fine, but it might need to be modified to accommodate individuals’ religious beliefs, Trafimow said.
“A lot of my clients in the wake of this decision are taking a look at their policies and asking, ‘Is it worth it to have this policy based on the challenges or lawsuits we may get?’” Wexler said. “It’s a good reminder for employers to look at what policies they have in place; if they are not essential to their operations or are outdated, they should consider amending or doing away with them.”
For some companies, Saturday is the busiest sales day of the week, and they may require all employees to work that day. The employer may be able to prove making an accommodation for an employee to have Saturdays off for religious reasons would present an undue hardship, but it’s a slippery slope.
“If the employer says everyone has to work on Saturdays, and it allows someone else to be off that day for an unprotected reason, it’s going to have an issue when it has to prove that it presents an undue hardship for this one person not to be there,” Malerba said, noting that excuses like “Other employees will be jealous if one employee has a day off” are not sufficient.
To avoid religious discrimination claims, “train, train, train,” said Ana Shields, a shareholder in the Melville office of employment and labor law firm Jackson Lewis. “Recruiters, hiring managers, interviewers – anyone involved in the decision-making process with respect to new hires – must fully understand the broad application of the law. They need to be on board with the company’s anti-discrimination policy and need to understand that reasonable accommodations can and will be made.”
