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Supreme Court's religious headscarf ruling increases employers' bias risks

Employers may need to take affirmative steps

Supreme Court's religious headscarf ruling increases employers' bias risks

Employers must consider whether a job applicant needs an accommodation based on religious needs, even if the applicant does not mention the subject, as a result of a ruling last week by the U.S. Supreme Court.

Following the decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., employers may have to “guess” or use their “intuition” to decide whether a job prospect has religious beliefs that should be accommodated to avoid running afoul of the Civil Rights Act of 1964, legal experts say.

A district manager's order not to hire Samantha Elauf, a practicing Muslim who wore a hijab, at the retailer's Abercrombie Kids store in Tulsa, Oklahoma, because it would violate Abercrombie & Fitch's “look policy” against wearing “caps” sparked the EEOC suit. Ms. Elauf was 17 in 2008 when she applied for a sales job, according to the ruling.

Ms. Elauf never told interviewers that she was obligated by her religion to wear the headscarf and the interviewers never questioned her about her religious beliefs, although an interviewer discussed the potential religious issue with the district manager, according to the high court.

“An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions,” the Supreme Court ruled 8-1.

While a Tulsa, Oklahoma, federal jury awarded Ms. Elauf $20,000 in compensatory damages, the 10th U.S. Circuit Court of Appeals granted summary judgment to the retailer in 2013 on the basis that Ms. Elauf had not told Abercrombie & Fitch before its hiring decision that her practice of wearing a hijab was based on her religious beliefs.

In overturning that ruling, the Supreme Court disagreed with the retailer's argument that a potential employer must have “actual knowledge” of an applicant's need for an accommodation before it can be accused of disparate treatment.

Notification of the need for a religious accommodation is “not a necessary condition of liability,” the Supreme Court ruled in remanding the case to the 10th Circuit to determine whether its dismissal of the case remains appropriate.

“This ruling protects the rights of workers to equal treatment in the workplace without having to sacrifice their religious beliefs or practices,” EEOC Chair Jenny R. Yang said in a statement.

While saying it was weighing what steps to take next in the litigation, Abercrombie & Fitch said in a statement that it “remains focused on ensuring the company has an open-minded and tolerant workplace environment for all current and future store associates.”

It also said that it has since changed its dress code to allow associates to be “more individualistic,” and it has granted “numerous” religious accommodations to employees, including wearing hijabs, when asked.

“It seems employers are going to have to use their intuition, based on what they see,” to determine whether they are obligated to provide a religious accommodation, said C.R. Wright, a partner at law firm Fisher & Phillips L.L.P. in Atlanta, who was not involved in the case.

“Are we supposed to guess as to whether somebody might need an accommodation?” asked Jeanine Gozdecki, a partner at Barnes & Thornburg L.L.P. in South Bend, Indiana. “How do we ask that question without venturing into areas of stereotyping, or ... asking about things that are actually prohibited?”

For example, if an applicant who looks like he may be an Orthodox Jew walks in, “you're going to have to make judgments based on stereotypes,” which the law states employers should avoid, said Jonathan T. Hyman, a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. “It's going to really increase the burden on employers on how they address the issue upfront in the hiring process.”

“It's a problem for employers because it's a lower standard than what the 10th Circuit required” in overturning the award, said Kevin E. Hyde, a partner at Foley & Lardner L.L.P. in Jacksonville, Florida.

However, “I would not characterize it so much as an additional burden for employers as more of a cautionary tale,” said Gregg M. Lemley, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart P.C. in St. Louis. But it is going to require “making sure their lower-level hiring managers are properly trained.”

Gerald L. Maatman Jr., a partner at Seyfarth Shaw L.L.P. in Chicago, said the ruling “confirms what many have believed,” which is that religious bias cases are like disability cases in that “affirmative steps must be taken by the employer to accommodate the individual in the workplace,” which must initiate an interactive process. There are “no magic words” that must first be spoken by the worker, he said.