Use of a Dress Code Gone Bad
Employers catering to the public, or relying upon in-person customer contacts to promote their businesses, have frequently established employee "dress codes" to regularize the appearance of their workforce. While these codes are typically worded in a "neutral" fashion (that is, one that does not single out impermissibly a particular religious or ethnic group), their application can nevertheless be legally risky. The recent decision by the Supreme Court in Equal Employment Opportunity Commission v. Abercrombie & Fitch illustrates just such legal risks.
Abercrombie & Fitch, the well-known retailer, had a "Look Policy" prohibiting all sales floor employees from wearing black clothing or caps. When applied, this benignly worded policy ended up exposing A&F to a significant claim of liability.
When Samantha Elauf came in for a job interview in A&F's Tulsa location in 2007, no one realized at the time that that encounter would lead to a potentially far-reaching decision by the United States Supreme Court. What made that visit noteworthy was the fact that Ms. Elauf (a Muslim) was wearing a head scarf during the job interview. Ms. Elauf did not mention anything about her religious beliefs or any accommodation she might need to perform her job that pertained to a headcovering.
After the interview, the assistant manager who interviewed Ms. Elauf rated her as qualified for hiring, but was uncertain about whether Ms. Elauf’s headscarf qualified as a prohibited "cap" under the Look Policy. She then consulted the company's district manager about the situation, indicating that she believed that Ms. Elauf wore the headscarf for religious reasons (that is, that Ms. Elauf was following Muslim precepts). The regional manager responded that the headscarf violated the Look Policy, just like any other headwear, irrespective of religion, and directed that Ms. Elauf not be hired.
Lawsuit Filed Over Refusal to Hire
Note that Ms. Elauf had not requested any kind of an accommodation for her religious practice, nor even mentioned that a religious practice was involved. The Equal Employment Opportunity Commission took A&F to court over its decision to refuse to hire Ms. Elauf, claiming the decision violated Title VII of the 1964 Civil Rights Act.
A&F claimed that its Look Policy was "neutral," that is, it treated all religious practices the same as similar secular practices. It also claimed that it could not be liable for a discriminatory practice because it did not know of Ms. Elauf's need for any religious accommodation. Finally, it asserted that it had not judged Ms. Elauf's qualifications because of her affiliation with a particular religious group, and therefore did not treat her differently based upon that characteristic.
Law Prohibiting Religious Discrimination
Title VII prohibits religious discrimination. In contrast to other segments of the statute that prohibit racial, gender or national origin discrimination, the religious discrimination segment does not penalize an employer treating an individual applicant or employee differently on religion grounds if it demonstrates that it is unable reasonably to accommodate the religious practice "without undue hardship." There are three factors comprising the statutory test for religious discrimination, (1) an applicant's experiencing an adverse employment action (such as not being hired), (2) the refusal to hire occurring was "because of" (3) the applicant’s religion or religious practices.
Supreme Court's Decision
The Supreme Court on June 1, 2015 (by a vote of 8-1), rejected all of A&F's claims and decided that Ms. Elauf had been discriminated against in violation of Title VII. In essence, the Court ruled that without advance knowledge of a need for a religiously based accommodation, an employer can still be liable for religious discrimination if the applicant proves that the employer’s refusal to hire was motivated by the applicant’s potential need for an accommodation.
There was no dispute in the case over the employer's refusal to hire Ms. Elauf, and the Court accepted for purposes of the case that Ms. Elauf's wearing a headscarf was a "religious practice."
As a result, the Court focused its attention on the second statutory factor, whether A&F's refusal to hire Ms. Elauf was "because of" her religious practice.
The Court determined that if a religous practice constitutes a motivating factor in an employer's refusal to hire, then the statute is violated irrespective of whether the employer knew of the need to accommodate such a practice. In reaching this conclusion, it contrasted Title VII's statutory requirement with the wording of the Americans with Disabilities Act (which prohibits an employer’s failure to make "reasonable accommodations to known physical or mental limitations" of an applicant).
The Court further ruled that A&F's treating Ms. Elauf differently because of a religious practice violated Title VII irrespective of A&F's general attitudes about individuals who are members of the same religious group as her.
EFFECT OF THE COURT'S DECISION
Properly Drafting and Applying Dress Codes
The Court's ruling in the Abercrombie & Fitch case could have significant repercussions in the workplace. The existence of the employer's "head cover" policy coupled with the discussion between managers surmising a religious connection to the wearing of a headscarf created a difficult legal situation for the employer. Employers should therefore emphasize to management and interviewers the importance of avoiding a knee-jerk reaction to an applicant's head covering that results in an automatic refusal to hire when pausing to consider potential alternatives would be better advised.
Thus, the first and most obvious impact of the decision in this case will be upon employer reliance upon "workplace appearance" policies. Employers who have such policies in place likely should re-evaluate those promptly to ensure they are neutral and not applied in such a way as to single out any religious or ethnic group. Further, employers should train interviewers involved in the hiring process to focus upon an applicant's qualifications for a job. If an applicant is deemed the most qualified and merits a job offer, then the employer can follow up with a discussion about the policy in place and the ways in which it can attempt to accommodate the applicant's appearance "without undue hardship."
Remember that an employer is expected to accommodate religious garb unless doing so poses that undue hardship. As the Equal Employment Opportunity Commission has emphasized, undue hardship should not be based upon co-worker discontent or customer preferences.
Evidence to Support Non-Discriminatory Conduct
The second impact of the decision will be upon what evidence constitutes proof of a violation in a case alleging religious discrimination. The Supreme Court emphasized that it was irrelevant that A&F did not know about the need for any religious accommodation.
However, in a footnote towards the end of the opinion, the Court acknowledged what happens in the real world – that is, that it is frequently difficult to separate a "motive" from some knowledge or suspicion. ("While a knowledge requirement cannot be added to the motive requirement, 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, that is, that he cannot discriminate 'because of' a 'religious practice' unless he knows or suspects it to be a religious practice."). Unfortunately, the Court then stated that that issue was not present in this case, since A&F "knew" or suspected that the head scarf was worn for a religious reason.
Therefore, it will be for future courts to decide the extent to which an employer's knowledge has an impact upon a finding of liability. Employers are therefore well-advised to confer with counsel to ensure proper documentation of the application process to avoid the pitfalls of an unintended violation of the law prohibiting religious discrimination.
