Yesterday, the Supreme Court of the United States issued its opinion in EEOC v. Abercrombie & Fitch Stores, Inc. There, the EEOC brought suit after Abercrombie refused to hire Samantha Elauf based on Abercrombie’s “Look Policy.” The Look Policy prohibited “caps,” and Ms. Elauf, a Muslim, wears a headscarf as part of her understanding of the requirements of her religion. Ms. Elauf’s interviewer knew that Ms. Elauf wore a headscarf and suspected, if she did not know, that the headscarf was worn as a religious practice. The Court noted that there is no knowledge requirement in a disparate treatment analysis, which forbids employers to fail to hire a job applicant because of the individual’s religion, including that individual’s religious practice.
The rule announced by the Court is, “[a]n employer m
ay not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” The Court rejected Abercrombie’s argument that, as part of her disparate treatment claim, Ms. Elauf must prove that Abercrombie had actual knowledge of her need for a religious accommodation. The Court noted that Title VII of the Civil Rights Act of 1964 does not include a knowledge component; it merely prohibits certain motives, regardless of the employer’s actual knowledge. Therefore, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”
Nevertheless, in a footnote, the Court stated that “it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice.” Because, in this case, the record showed that Abercrombie at least suspected that Ms. Elauf wore a headscarf for religious reasons, the Court declined to decide the question of liability where the employer has no knowledge or suspicion that the individual’s practice is a religious one. Therefore, it has not yet been decided whether an employer can be held liable for disparate treatment if it makes a decision based on an applicant’s need for a religious accommodation but the employer has no inkling that the need arises from a religious belief.
So, for now, what is an employer to do? Employers certainly do not want to face lawsuits based either on their knowledge of or ignorance of an applicant’s religious beliefs and practices. There is a fine line between eliciting information about an applicant’s religious beliefs for the purpose of determining whether any religious accommodations are needed – and eliciting information about an applicant’s religious beliefs for any other purpose, which could be considered religious discrimination. Typically, you do not want to ask an applicant about their religious beliefs in a job interview, just as you do not want to ask whether the individual has a disability – but then how do you avoid a suit like the one Abercrombie faced?
The best way to approach this issue is likely similar to the way the issue of disability is handled during the application process. That is, don’t ask a job applicant about his or her religious beliefs and practices, just as you would not ask whether the applicant has a disability. Rather, focus on performance of job duties and fulfillment of job requirements. Provide job applicants with a list of job duties and requirements. Ask applicants whether they are unable to fulfill any of those duties or requirements. If they are unable, ask whether the reason is religious. If so, ask the applicant whether he or she would need an accommodation and what that might consist of. Confine your discussion with the applicant to the job’s duties and requirements and whether the applicant can fulfill those with a reasonable accommodation.
If you, as the employer, have the least suspicion that the applicant may need an accommodation because of a religious belief, do not refuse to hire the applicant based solely on that knowledge or because an accommodation would be needed without first determining whether the accommodation would impose an undue hardship on your company. In that situation, consulting with your attorney before making a decision about whether to hire the individual is a good idea.
Although employers may not be liable in situations in which they have no actual knowledge that an accommodation is needed for religious reasons, based on the ruling in EEOC v. Abercrombie, it is best to take no chance of even accidentally refusing a religious accommodation. Therefore, the best practice at this point is to determine whether an accommodation is needed and, if so, whether it is needed because of a religious belief. Employers will need to be more proactive, based on this recent ruling, to ensure that they do not remain in the dark regarding applicants’ need for religious accommodations while continuing to avoid any type of discrimination based on those religious beliefs.