Seyfarth Synopsis: Yesterday the Supreme Court held oral argument in Groff v. DeJoy, a case in which the Court is considering whether to overturn decades of precedent established by the seminal religious accommodation case, Trans World Airlines Inc., v. Hardison. Decided in 1977, Hardison is the seminal case establishing that an employer is
Continue Reading Takeaways From SCOTUS Oral Argument in Groff v. Dejoy: Justices Attempt to Find “Common Ground” on Religious Accommodation TestBy Dawn Reddy Solowey and Lynn Kappelman
On October 2, 2014, the U.S. Supreme Court agreed to weigh in on the long-running litigation between EEOC and Abercrombie & Fitch over the retailer’s decision not to hire a Muslim teenager who interviewed for a position in a headscarf that violated its “Look” policy.
The Court’s much-anticipated decision may clarify when an
Continue Reading What Does The Employer Know, And When Does It Know It? SCOTUS Grants Cert In EEOC V. Abercrombie Religious Discrimination Suit
As we previously noted, businesses are increasingly confronted with Catch-22 situations when trying to accommodate the religious beliefs of their employees and patrons. In the workplace, this circumstance arises frequently in the context of religious-based refusals to shake hands with opposite-sex co-workers. In our last post on this topic, we discussed what to do if a company learns during the interview process that an applicant does not shake hands with women for reasons the company suspects relate to his religion. Assuming this hypothetical candidate is hired and confirms that–as a matter of religious belief–he will not shake hands with women, what should the company do next?
Continue Reading Let’s Not Shake On It: Getting a Grip on Faith-Based Refusals to Shake Hands with Opposite-Sex Co-Workers (Part II)
It’s a hot-button topic that we’ve blogged about before: when does an employer have to make exceptions to its dress and grooming policies because of an employee’s or applicant’s religious objection?
Now the EEOC has weighed in with a new Guidance and Fact Sheet on “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” issued March 6, 2014.
The EEOC’s view is not necessarily the final word on these issues, since the agency’s positions are more employee-friendly than the courts have allowed in some jurisdictions, and individual states’ laws may differ from the agency’s view. Still, the Guidance provides valuable insight for employers as to the EEOC’s position and priorities on the heavily-litigated issues of religious clothing and grooming in the workplace.
Continue Reading “You’re Wearing That?” The EEOC Weighs in on Workplace Accommodations for Religious Clothing and Grooming Practices
Employment discrimination laws are designed to ensure equal employment opportunity for all individuals by prohibiting discrimination on a variety of bases and requiring companies to accommodate qualified disabilities and religious beliefs. But what happens when those very protections and accommodations for one protected trait appear to justify or mandate discrimination against a different protected class? Consider this
Continue Reading Let’s Not Shake On It: Getting a Grip on Faith-Based Refusals to Shake Hands with Opposite-Sex Co-Workers
By Dawn Solowey and Lynn Kappelman
How Does “Undue Hardship” Fit into the Law of Religious Accommodation?
Under federal law, in religious accommodation cases, the employee must show that he or she: (1) has a bona fide religious belief that conflicts with a job requirement, (2) notified the employer of the belief, and (3) was disciplined for failing to comply with the conflicting requirement. If the employee succeeds in making that showing, the employer must show that it offered a reasonable accommodation, or could not do so without undue hardship. As a practical matter, employers face a high hurdle in establishing the affirmative defense of undue hardship.
Here’s How One Employer Managed to Show Undue Hardship
In EEOC v. JBS USA, LLC, the EEOC brought a pattern-and-practice case under Title VII against JBS, a meatpacking company, in the federal district court in Nebraska. The EEOC claimed that JBS failed to reasonably accommodate Muslim employees’ religious practices. The EEOC claimed that JBS should have allowed Muslim employees to take unscheduled breaks to pray, and/or to change the time of the meal break, during Ramadan, to coincide with the Muslim employees’ sunset prayer time.
The Court held that there were two ways for an employer to show undue hardship: by showing that the accommodation would impose more than a “de minimus” cost on the employer, or by showing that the accommodation would cause a more than “de minimus” (meaning “real” and “actual”) burden on coworkers.
Continue Reading It’s Hard to Show Hardship (But Not Impossible): How One Employer Defeated an EEOC Pattern-and-Practice Case By Proving a Religious Accommodation to Muslim Workers Would Cause Undue Hardship
By Lynn Kappelman and Dawn Solowey
On October 1, 2013, the Tenth Circuit issued a ruling in the religious discrimination case brought by a Muslim teenager who claimed that Abercrombie & Fitch refused to hire her as a salesperson because she wore a hijab—a traditional Muslim headscarf. The hijab conflicted with the retailer’s “Look Policy,” which required salespeople, referred to in the company as “Models,” to maintain a “classic East Coast collegiate style of clothing,” and forbade any head-coverings. The lower court had granted summary judgment to the EEOC, but the Tenth Circuit did an about-face, not only reversing the lower court’s judgment, but granting summary judgment to Abercrombie.
What Happened In This Case?
Seventeen year-old Samantha Elauf, who identifies herself as Muslim, and claimed to have worn a headscarf for years for religious reasons, applied for a sales floor position in an Abercrombie store in Tulsa, Oklahoma. At the job interview, to which she wore the headscarf, Ms. Elauf said nothing to Abercrombie about the fact that she was Muslim. She did not bring up the subject of the headscarf, or say that she wore it for religious reasons, that she felt a religious obligation to do so, or that she would need an accommodation from the “Look Policy.” However, her interviewer testified that she assumed that Ms. Elauf was Muslim, and wore the head-covering for religious reasons. There was evidence that the headscarf influenced Ms. Elauf’s interview scores, and in turn, the company’s decision not to hire her.
What Did The Court Hold?
The Tenth Circuit held that the burden is squarely on the applicant or employee to advise the employer that he or she has a religious practice that conflicts with a job requirement. Since it was undisputed that Ms. Elauf had not notified Abercrombie of the conflict, the Court held that the EEOC could not make this required showing, and the religious accommodation claim failed as a matter of law.
Continue Reading If You Want a Religious Accommodation, You’ve Got To Ask For It: What Employers Can Learn from the 10th Circuit’s Ruling in EEOC v. Abercrombie & Fitch