I have read, for the fourth time, the Supreme Court’s decision in EEOC v Abercrombie & Fitch and remain baffled. What is an employer to do?
Very briefly, in the case, the employee wore headscarves that are often worn by Muslim women. These scarves did not meet the ‘"look" A&F wanted. Managers there talked about their belief she might be Muslim, but never discussed the “look” issue with her.
Without getting caught in the legal weeds, the Supreme Court said A&F could be liable for religious discrimination by way of failure to accommodate, even though it only suspected the applicant’s religion and even though the applicant never requested an accommodation.
Related: When a Tattoo Equals a Lawsuit
It is said bad facts make bad law. There were bad facts (conversations about the applicant’s speculated religion and more). So we ended up with, in my view, bad law.
The Supreme Court said, with regard to religious discrimination (including failure to accommodate), “motive” as opposed to “knowledge” is key. But how can you discriminate without knowledge?
In this case, the employer speculated as to the applicant’s religion. But what if the employer had not done so? Would that have made a difference?
Writing for the majority, Justice Scalia said in footnote 3 the result might have been different if there had been no speculation. But does speculation need to be verbalized? It would seem that, even with footnote 3, an employer does not necessarily avoid liability simply by not speculating if the employer has an objective reason to believe the applicant may have a religious belief, practice or observance that conflicts with a requirement.
With all due respect to the Supreme Court, its decision is unworkable in the real world, putting employers in an impossible Catch-22. It arguably invites employers to engage in stereotypic speculation that may result in invasive questioning.
Let me give you an example. Assume a job requires Saturday work and an applicant says "no." Do you have an objective reason to believe (speculate) that applicant may be Jewish and observe the Jewish Sabbath if:
- The applicant has a common Jewish last name? No! He might have a Jewish grandparent, for example, but not identify as being Jewish.
- He is wearing a Jewish star? No, he could be Jewish but not observe the Sabbath. Or, he could be a Christian who is wearing the star in support of Israel.
- He is also wearing a Kippah? Getting closer but that still does not automatically mean he observes the Sabbath.
- He tells you he enjoys to “kibbitzing.” Yiddish!
Do we now have a cluster of factors indicating a potential Jewish identity? Do we now have to ask why he cannot work on Saturday and/or raise accommodations? This is making me meshuggah (crazy). Excuse me. I need to scream. Be back in a moment.
No, I do not recommend employers speculate on religion. Nor do I think employers can ignore what they know or should know. Is there another way to put the burden appropriately on the applicant to raise the accommodation?
Please consider the following framework:.
1. Provide applicants with your reasonable accommodation policy at the outset of the interview. Generally speaking, it should address: (a) religious beliefs, practices and observances; (b) physical or mental conditions; or (c) pregnancy (including medical conditions associated with pregnancy or child birth.) Tell applicants to contact HR or another designated point person if they need an accommodation to meet a demand or requirement.
2. Develop a uniform list of questions for each open position that addresses what the essential functions of the job are, as well as whatever demands (such as working weekends) and requirements (security gear) go with it. Of course, the essential functions should be on the job description. The uniform questions are a starting point. That does not mean there cannot be individualized questions based on the applicant’s resume or as part of the dialogue.
3. Train managers to ask an applicant only whether the applicant can perform the functions, meet the demands, comply with the requirements, etc, of the job. Also, train managers never to ask an applicant about religion (as well as any actual or perceived disability, pregnancy or any other status protected by law).
4. Provide guidance to managers on what to say and (not to say) if the applicant raises the need for an accommodation. Ideally, the manager should let the applicant know that he or she will raise the issue with HR and HR would then reach out to the applicant as appropriate.
5. Be very careful of “look” requirements. If you want a certain professional or edgy look, define it so that it is inclusive of diverse religious and cultural attire. Make sure also it does not have effect of excluding people because they fall in another protected group.
For example, I worry about disabilities when it comes to look requirements. The fact that someone has a visible disability is never a “knock out” based on “look,” and if your focus makes it one, the EEOC appropriately will knock you out. Training managers on “look” requirements is essential.
This framework is not risk free, nor are the alternatives I have seen proposed. However, I do believe it is reasonable. Further, I believe it is consistent with Justice Alito’s concurrence. I hope lower courts will give it the attention it deserves.
In his concurrence, Justice Alito answered the question that the Court declined to answer. He said he would hold an employer cannot be “held liable for taking an adverse action because of an employee’s religious practice, unless the employer knows that the employee engages in the practice for a religious reason.”
The framework I have proposed will provide the applicant with clear guidance on how to raise a religious belief, practice or observance without the employer asking or speculating. If the applicant raises one, let the interactive dialogue begin!