Abercrombie and the Headscarf

Religious DiscriminationTitle VII of the Civil Rights Act creates a number of protected classes, identifying characteristics that have historically been the source of prejudice and discrimination at work. The law forbids employers from discriminating against employees and job applicants based upon their membership in these protected classes. In EEOC v. Abercrombie & Fitch, the United States Supreme Court took on religious discrimination in job interviews and leaves all employers with crucial guidance for hiring decisions.

What is Title VII of the Civil Rights Act?

Title VII of the Civil Rights Act prohibits a company from failing to hire an applicant because of his or her religion, unless the company is unable to offer a reasonable accommodation without undue hardship. Importantly, the burden is on the job applicant as the plaintiff to prove that the company did not hire him or her because of religion. EEOC v. Abercrombie turned the meaning of the phrase “because of.”

Samantha Elauf is a practicing Muslim and wore a headscarf (a hijab) to her job interview with Abercrombie & Fitch. Although Samanatha never said that the headscarf was religious attire, the interviewer assumed that she wore the hijab for religious reasons. Apparently the interview went well because the manager thought Samantha was qualified. However, Abercrombie decided not to hire Samantha because wearing a hijab would violate Abercrombie’s “look policy”. The look policy (similar to a dress code) forbid employees from wearing “headgear.”

The Equal Employment Opportunity Commission (EOC) took up Samantha’s case and filed a lawsuit against Abercrombie. The EEOC argued that the company did not hire Samantha based on her religion n violation of Title VII. The EEOC also stressed that an accommodation for Samantha would be been simply and accomplished without causing any burden or hardship for the company. In its defense, Abercrombie argued that as an employer, it was only required to provide an accommodation if the applicant explicitly stated the need for a religious accommodation. Abercrombie’s argument is known as the “actual knowledge standard.”

What Did The Supreme Court Say About Religious Discrimination?

The U.S. Supreme Court rejected the actual knowledge standard and ruled in favor of Samantha Elauf.

The Court ruled that a job applicant does not need to tell an employer about the need for a religious accommodation. Instead, a plaintiff must show the need for a religious accommodation was merely a motivating factor in the company’s decision not to hire the applicant. This significantly lowers the burden and may encourage more unsuccessful applicants to bring lawsuits.

How Does The Ruling Affect Illinois Law?

Illinois law follows the Federal standard, which means the Abercrombie decision changes Illinois law on religious discrimination. The Illinois Human Rights Act governs what constitutes employment discrimination, and basically mirrors Title VII of the Human Rights Act. Before Abercrombie, the controlling Illinois case was Adeyeye v. Heartland Sweetners, which interpreted the Illinois Human Rights Act. Adeyeye utilized the actual knowledge standard (finding the employee provided actual knowledge of a religious accommodation for time off to sacrifice 5 goats at the funeral of his father to prevent further tragedy in his family). However, after Abercrombie actual notice is not required. Now, the analysis turns on the employer’s motivation in not providing the accommodation.

How Does The Ruling Affect Missouri Law?

Just like Illinois, the Abercrombie case also changes Missouri law regarding religious discrimination. The burden to prove a religious discrimination claim under the Missouri Human Rights Act is now much easier for a job applicant or employee who believes he or she lost out on a job because of religion.

What Do Employers Need to Know About Religious Discrimination?

Again, Title VII forbids discrimination in the workplace because of someone’s religion. After the Abercrombie case, employers can no longer claim that they lacked actual knowledge of the religion or the need for some religious accommodation to a work policy.

Ultimately, religion should not play any part in hiring or firing employees. Employers must also be aware of religious issues when creating work schedules, allowing employees to take time off and considering exceptions to dress codes or other policies. The bottom-line: human resource decisions and company policies must the religiously neutral and decision-makers need to understand the risks of allowing religion to have any impact on their decisions.

Lack of knowledge or purposefully ignoring information will no longer protect you.

What Is The Best Practice For Dealing With A Religious Issue At Work?

You cannot ask about an applicant’s religion in an interview. Do Not Do It.

You should not ask about a current employee’s religion. Consider this as a Do Not Do It.

If you suspect that there is an issue or that an applicant or employee may have an issue with one of your company policies:

  1. Describe the Policy in neutral terms;
  2. Ask the applicant/employee if they can follow the policy;
  3. If they say “no” or “maybe” or express any other reservations, ask the applicant/employee “WHY”. Keep this very open ended.
  4. If the applicant/employee’s response has anything to do with religion, that is all they need to bring a claim if you cannot provide a reasonable accommodation for that person to practice their religion.
  5. Find a way to accommodate the person’s issue or very carefully weigh out the cost of that accommodation to the company.

If you have questions about your company’s policies and how the Abercrombie decision may affect you, contact the BiState Law Center. We help company’s create strong legal foundations and to craft policies that promote efficiency and safety. Call to schedule an evaluation today!