SC Rules On Religious Accommodation

June 2, 2015 at 9:29 am Leave a comment

Does your credit union have an obligation to accommodate a job applicant’s   religious practices if she doesn’t put you on notice that she needs an accommodation?     That was the question answered by the Supreme Court yesterday.

Its response was straightforward and underscores just how careful you have to be when dealing with issues of religious practice. “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”  Furthermore, federal law  “ does not demand mere neutrality with regard to religious practices Rather it gives them favored treatment, affirmatively obligating employers not to fail or refuse to hire or discharge any individual . . . because of such individual’s’ religious observance and practice.”

Samantha Elauf was a practicing Muslim who wore a headscarf.   She applied for a job as a sales person at Abercrombie and Finch.  The employee who interviewed her thought she was a good fit for the job but suspected correctly that she wore the hijab for religious reasons.  After the interview,  the employee  talked to her   supervisor who told her  not to hire Samantha because her attire would violate the store’s “look policy.”  That policy wanted employees who exemplified “a classic East Coast collegiate style of clothing.”  (Meaning that I should stop trying to moonlight there.)

Joined by the EEOC Samantha  sued the store claiming it violated  federal law by refusing to hire her because of a religious practice   She won a $20,000 against the company but the Court of Appeals for the Tenth Circuit reversed.  It ruled that, since Samantha didn’t put the store on notice that she needed a religious  accommodation it was under no obligation to give her one.

In yesterday’s decision, E.E.O.C. v. Abercrombie & Fitch Stores, Inc, the Supreme Court rejected this logic.   Eight justices agreed that Title VII of the Civil Rights Act “prohibits actions taken with the motive of avoiding the need for accommodating a religious practice. A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.”

How could the store be discriminating against an employee’s religious beliefs if it was simply imposing a company wide dress policy? Here is the part of the decision that I find most interesting.  Justice Scalia points out that” [a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

A head scarf is a well known religious garb but what if Samantha had a small cross around her neck that the employee didn’t notice? This is the part of the decision that is most disappointing.  The Court essentially said it will decide in the future whether it is a condition of liability that the employer knows or suspects that the practice it refuses to accommodate is a religious practice.

Please run this by your HR professional but to me it is clear where the Court is headed. If you know or should know that an employee or applicant needs a religious accommodation than you should talk with the employee and provide the accommodation unless you can clearly show that doing so would cause an undue hardship.  Selective ignorance is not a defense and an employer has an affirmative obligation to accommodate religious practice.

Entry filed under: Legal Watch. Tags: .

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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