By Dawn Solowey and Ariel Cudkowicz
On June 1, 2015, in a 8-1 ruling, the U.S. Supreme Court ruled for the Equal Employment Opportunity Commission in the religious-discrimination case of EEOC v. Abercrombie & Fitch Stores, Inc. We blogged about that opinion on the day of the decision.
But many employers are wondering: now what? Read on for some practical, common-sense “do’s” and “don’ts” for hiring in the wake of the Supreme Court’s ruling.
Ten-Second Recap of the Supreme Court’s Decision
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 question before the Abercrombie Court was “whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.”
The Court rejected Abercrombie’s argument that an applicant cannot show a violation of Title VII without first showing that the employer had “actual knowledge” of the applicant’s need for accommodation. Instead, the Court held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”
The bottom line? “[T]he rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
Do’s and Don’ts
DO Update Training
Update training programs to ensure that hiring managers and interviewers learn best hiring practices. What questions are OK to ask, or not ask? How do you handle a religious accommodation request? When do you call Human Resources or Legal? Remind trainees that there can be no retaliation against an applicant for having requested an accommodation.
DON’T Ask Directly About Religion
Many of the old rules still apply. Employers should NOT ask applicants directly about religion or religious practices and should NOT assume anything about an applicant’s religion based on stereotypes.
DON’T Stick Your Head in the Sand
On the other hand, When the employer is aware of, or even suspects, a potential conflict between an applicant’s religious practice and a work rule, from any source, the employer should explain the work rule and ask if the rule would pose any problem for the applicant.
Let’s say an applicant arrives to the interview wearing religious clothing that violates the employer’s uniform policy. The employer should communicate the rule and ask if that rule would pose any issues for the applicant. This invites the applicant to disclose any conflict, but avoids a direct inquiry into the applicant’s religion or religious practice.
Facial hair, long hair, head coverings, religious clothing or jewelry, tattoos, and body art are just some personal attire or grooming practices that might be religious in nature, and apparent in an interview, and may also conflict with certain employers’ policies on uniforms, grooming, professional appearance, or safety policies.
The employer may consider alerting applicants more broadly to policies that could pose conflicts for applicants of various religious groups. For example, an employer whose policy is to require weekend work might consider letting all applicants know that up front. The question can be simple: “This position requires work on Saturday and Sunday, would that pose any problem for you?” This starts the dialogue but avoids stereotyping or prying. It also means the employer doesn’t have to guess from dress or other clues whether an applicant is an Orthodox Jew, an evangelical Christian, or a Seventh-Day Adventist who might observe the Sabbath, and what that means in practice.
DO Engage in the Interactive Process (When Warranted)
Once the employer explains the work rule and asks if it would pose a conflict, the applicant’s response determines what happens next.
If the applicant says that there is no conflict, leave it at that. Let’s say the employer explains to an applicant with dreadlocks that the grooming policy forbids long hair, and the applicant says that rule poses no problem for him. Don’t ask for more detail, or question whether the applicant can really abide by the rule.
If the applicant says that there is a conflict, ask why. The answer may or may not relate to religion. One applicant may say she can’t work weekends because she wants to spend time with her kids, and another may say that any work from Friday sundown to Saturday sundown conflicts with her religious belief against work on the Jewish Shabbat.
If the applicant cites a religious reason, the employer must engage in a dialogue — what the law calls “the interactive process” — to explore whether a reasonable accommodation is possible, or whether it will pose an undue hardship.
DO Loop in Human Resources and Legal
If the interactive process is warranted, involve Human Resources. Why? Because HR often has greater expertise in the area of religious accommodation and a deeper knowledge of the company’s religious-accommodation policy. HR likely has a broader perspective about how the company has handled similar accommodation requests, which helps ensure consistency. Finally, HR can help document the interactive process so that there is an accurate record of the request and any accommodations offered or refused.
The employer should also consider consulting legal counsel who specializes in this area for guidance. A legal expert can help navigate the thorny, fact-specific questions of what is a reasonable accommodation, and what is an undue hardship. Counsel can also help the employer to ensure compliance with state or local religious discrimination laws, which can vary from the federal law at issue in Abercrombie.
Both HR and Legal can help brainstorm creative solutions to a conflict between religious practice and a workplace rule. An employee observing the Sabbath might be able to swap shifts with a co-worker or be scheduled around services. A worker seeking a religious exemption to a safety policy forbidding long hair could be allowed to tie his hair up.
DO Set the Right Tone
Be careful to set the right tone. Always be respectful of any religious practice, no matter how unusual. Don’t make assumptions about whether a practice is a “real” requirement of a given religion; under the law, a “sincere religious belief” doesn’t necessarily need to be part of an organized religion, or practiced by many people, or long-held by the employee. The interviewer should avoid making comparison to his or her own, or other employees’, religious identity or practice, or citing advice from a priest or rabbi. Like so much in the workplace, respect and communication can go a long way.
If you have questions regarding this blog or this topic, generally, please contact the authors, a member of Seyfarth’s Workplace Counseling Group, or your Seyfarth attorney.