[Note: we asked JD Supra authors for their First Glance analysis of the United States Supreme Court's decision in EEOC v. Abercrombie, in which the high court ruled that Abercrombie & Fitch was obliged under Title VII of the Civil Rights Act to offer religious accommodation to a Muslim job applicant, although she had not asked for accommodation. Here is what we heard back from Robin Shea, partner (and blogger extraordinaire) at law firm Constangy, Brooks, Smith & Prophete, LLP:]
Technically, the Supreme Court decision holds that an employer can be liable for religious discrimination/failure to accommodate even if it did not have actual knowledge of the need for religious accommodation. Instead, a plaintiff can prevail if he or she can show that the employer was motivated by a desire to avoid religious accommodation, which may or may not require actual knowledge.
Superficially, that may sound alarming for employers, but I do not believe that it should be.
Superficially, that may sound alarming for employers, but I do not believe that it should be. What Justice Scalia pointed out was that, in most cases, actual knowledge will still be the only way to establish the requisite “motivation.” However, employers cannot be willfully ignorant. A defense based on an employer’s failure to follow up makes it too easy for employers to discriminate on the basis of religion. For example, an employer with a seven-day workweek might automatically reject anyone who comes in for an interview wearing a yarmulke (on the assumption that the candidate would want to be off for the Sabbath) as well as anyone who is wearing a crucifix (on the assumption that the candidate would want to be off on Sundays). I think that this type of outcome is what the majority was trying to prevent.
...in most cases, actual knowledge will still be the only way to establish the requisite “motivation.
If an employer has reason to believe that an otherwise-qualified applicant (or employee) may be disqualified because of a religious belief or practice, then the employer should not “assume" but should follow up with the applicant or employee. For example, in a job interview, Abercrombie could have said to Ms. Elauf, “Our ‘looks’ policy prohibits store employees from wearing anything on the head. Do you see any reason why you would not be able to comply with that policy?” At that point, the applicant would either say No, in which case there will be no issue, or she will say Yes. If the answer is Yes, the employer can ask why, which should be the beginning of an “interactive process.” If the applicant discloses that she has to wear the scarf for a religious reason, then the employer should treat it as a religious accommodation situation from that point forward. (Meaning that the employee’s religious belief or practice must be accommodated unless it would be an undue hardship for the employer.) If a local store manager does not feel equipped to handle religious accommodation, he or she should contact the company’s Human Resources representative for help.
...there are sometimes very legitimate reasons for declining a religious accommodation.
One final point: there are sometimes very legitimate reasons for declining a religious accommodation. For example, the religious need may conflict with a legitimate health or safety requirement, or with the fundamental nature of the employer’s business. (As an example of the latter, a devout evangelical Christian probably could not be “accommodated” in the pornography industry.) However, when the need for accommodation conflicts with a mere appearance code, or other policy that is less compelling than health or safety or the fundamental nature of the business, the employer will have a more difficult time contending that accommodation is an undue hardship.
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