On June 1, the Supreme Court handed down an overwhelming 8-1 ruling against Abercrombie & Fitch for discriminating against Samantha Elauf, a practicing Muslim, for wearing a headscarf under Title VII of the Civil Rights Act of 1964. Abercrombie refused to hire Elauf because scarfs or head pieces of any kind violate their corporate dress code.
Various groups have reacted to this decision in a variety of ways -- some herald it as a victory for religious freedom, while some interpreted it as an assault on Christian traditions.
What practically no one is taking away from EEOC v. Abercrombie & Fitch is that SCOTUS basically codified a recipe for how to claim religious accommodation under almost any circumstance.
This sounds almost absurd, considering that Abercrombie was handed such an overwhelming defeat on very precise legal grounds. However, within the context of HR law, the details are everything -- and Abercrombie lost on two main points by claiming ignorance and failing to prove undue hardship.
Abercrombie never knew for certain that Elauf would need religious accommodation; they just assumed that since she wore the headscarf to the interview that it would be a part of her normal, everyday dress. They never asked her if it was worn for religious reasons.Justice Alito drove this point home in his affirmative opinion by stating that Abercrombie's biggest mistake was assuming that Elauf wore the headscarf (which was bought at a secular store) for religious reasons, and then never actually discussed the matter with her to see if compromise or accommodation could be met.
Because of this claim of ignorance, it made it almost impossible for Abercrombie to prove an undue hardship to its business practices.
Undue hardship claims can be tricky when going before the courts. Some are absolute in nature -- such as an employer forbidding headscarves (and all other loose-fitting clothing) around dangerous machinery. Policies such as Abercrombie's dress code, however, have been a bit more difficult to sell as an undue hardship to the courts. This ruling clarified the usage of the undue hardship argument, claiming that accommodation must be made in all cases except when the employer's rule is absolutely required.
The victory for workers was the clarification that "failure to accommodate" is a claim of disparate treatment. While the plaintiff still has the burden of proof that religion was the underlying motivation for the employer's decision, simply proving the employer's avoidance or reluctance in accommodating could be sufficient for victory.
This is unlike the Americans with Disabilities Act, where workers must explicitly claim accommodation for the employer to be held liable. This ruling on Title VII means that workers can sue even if the employer is not explicitly informed of the need for accommodation.
In short, the burden of proof is now on employers to ensure that their hiring practices and HR policies conform to the ruling.
What HR departments can glean from this ruling includes:
- Have policies that are defensible in both law and common sense;
- Don't assume religion is an issue until it becomes an explicit factor in the employment negotiations;
- Once the subject of religion is breached, talk with the applicant to fully understand their commitments and intentions;
- Directly ask the applicant if they are willing to abide by the company policies;
- Train recruiters to never cite religion as a reason for denying an applicant a position; and
- Keep impeccable records.
The absolute best defense in all HR legal cases is the company being able to demonstrate a history of hiring the best qualified individuals for each position, regardless of any other factor.
On thing is for certain, we are more than likely going to see a whole lot more outward religious observance in the workplace as a result of this ruling.