The U.S. Supreme Court’s June 1 decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc. was an unwelcome one for employers—many of whom already felt as if the straightforward task of interviewing job applicants has become an exercise in navigating a minefield of anti-discrimination laws. But the decision offers employers some valuable reminders and tips about their approach to interviewing applicants, making hiring decisions, and offering accommodations for applicants’ religious beliefs and practices.
The case featured Samantha Elauf, an Oklahoma teenager who applied at an Abercrombie store to work as a sales associate, and interviewed for the position while wearing a headscarf in accordance with her Muslim beliefs. Although the assistant manager who interviewed Elauf found her qualified for hire, she worried that Elauf’s black headscarf would conflict with two aspects of Abercrombie’s dress code (known as the “Look Policy”): a provision prohibiting black clothing and another prohibiting “caps.”
The assistant manager did not ask about Elauf about her religion or headscarf during the interview, and Elauf likewise never asked any questions about the store’s dress code. Afterward, however, the assistant manager consulted the store’s district manager for guidance, telling him that she suspected Elauf wore the headscarf for religious reasons. The district manager responded by instructing her not to hire Elauf.
Although federal and state anti-discrimination law requires employers to offer “accommodation” to applicants’ religious beliefs and practices (such as modifying work schedules or dress codes), the first appellate court to hear the case sided with Abercrombie, because Elauf never expressly told the company that she would need any accommodation. The Supreme Court disagreed, holding that the decision to reject Elauf, based on the suspicion that she might need a religion-based accommodation, was enough to render Abercrombie liable for discrimination.
How can an employer prevent a claim of religious discrimination or other related claims from an applicant who never even asked for a religion-based accommodation? Abercrombie offers some clues.
First, interviewers should be trained in the general principles of avoiding religious discrimination, especially understanding that the law requires some reasonable accommodation of religious beliefs and expressions in the workplace.
Second, those interviewers should be given guidance on obtaining information that might relate to a need for accommodation—without asking applicants directly about their religions or religious needs. This can be as simple as reviewing simplified job descriptions, or lists of essential job functions and employee rules (such as dress codes) with applicants at the time of the interview, and asking if the applicant would have any problem performing those functions or complying with those rules. This places the applicant in the position of pointing out any challenges, so that the employer better understands if an accommodation is being requested.
Third, when an interviewer receives feedback from an applicant indicating a possible need for accommodation, the interviewer should collect facts about the need behind the question. For example, an applicant may state that he is unable to work on Saturdays; but only additional questioning will establish whether that is because the applicant golfs on Saturdays (not something that requires accommodation), or because he is a Seventh-Day Adventist (which might require the employer to make scheduling accommodations).
Fourth, the interviewer should delay the hiring decision and bring the situation to human resources personnel for further guidance. It may be helpful to have a second meeting with the applicant—with legal or human resources staff in attendance—to explore what accommodations might meet the applicant’s needs. If an applicant is rejected because no workable accommodation can be identified, this “brainstorming” process should be exhaustively documented.
If an applicant is ultimately rejected for some reason other than the need for a religious accommodation, that reason also should be carefully documented—and should be consistent with the rejections of other applicants.
No one disputes that the Abercrombie decision exposes employers to increased risk from religious-discrimination claims. But training and cautious responsive measures can keep that risk to a minimum.
Kyle W. Sturgess is an attorney in the labor and employment law practice group at Harris Beach PLLC.
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