- Employers are prohibited from denying employment opportunities to an applicant or employee on the basis of her confirmed or suspected religious beliefs or practices.
- Employers shouldn’t ask applicants about religious beliefs during the interview process or assume, based on appearance, that an applicant has certain religious beliefs or requirements.
- Employers may explain to all applicants the job requirements—e.g., the work schedule—and ask if they can meet those requirements.
- If an applicant or employee requests an accommodation, an employer should engage in an interactive process to determine what accommodation is needed and the effect it will have on the business.
- Reasonable accommodations should be made if they won’t create an undue hardship.
- Employers may be required to accommodate dress and grooming habits based on a religious practice or belief unless you have a policy against the dress or grooming habits that is justified by a business necessity. For example, employers aren’t required to accommodate head scarves or long garments in an industrial plant where loose clothing may get caught in moving machinery.
Life after the U.S. Supreme Court’s Decision in Abercrombie
The U.S. Supreme Court sent employers a clear message in early June that a hesitance to accommodate an applicant’s religion constitutes religious discrimination. The ruling against a major clothing retailer and in favor of the Equal Employment Opportunity Commission’s (EEOC) stance on what constitutes religious discrimination leaves employers in need of advice on when and how to accommodate employees’ and applicants’ religious beliefs and practices. Here’s some guidance. Abercrombie Facts In an 8-1 ruling, the Supreme Court on June 1 sided with the EEOC in EEOC v. Abercrombie & Fitch Stores, Inc. The case centered on Samantha Elauf, a young Muslim woman who interviewed for a job at an Abercrombie store in Oklahoma in 2008. She met the basic requirements but wasn’t offered the job because she wore a hijab. At the time, Abercrombie had a “look policy” that prohibited employees from wearing head coverings on the job. The interviewer didn’t ask Elauf if she would need a religious accommodation, but the interviewer said she suspected the applicant wore the Muslim head scarf for religious reasons. The Court said that suspicion was enough to trigger an accommodation; it wasn’t necessary for the applicant to specifically request one. Understanding Title VII and Religious Accommodations Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer with 15 or more employees to discharge or otherwise discriminate against or harass applicants or employees on the basis of religion. In addition, Title VII requires employers to provide a reasonable accommodation for an employee’s sincerely held religious beliefs or practices unless it would cause the employer an undue hardship. How do we define religious beliefs or practices? Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.” Beliefs aren’t protected under Title VII merely because they are sincerely held (e.g., many people adhere to a vegan diet for purely secular reasons). The definition of religious practice isn’t exactly clear, but it’s safe to say that wearing a head scarf in observance of the Muslim faith met the definition in this case. Other religious practices include, but are not limited to, a Christian wearing a cross, a Sikh wearing a turban, or a Jew wearing a yarmulke; taking breaks during the workday to pray; fasting; being home by sundown on the Jewish Sabbath or holidays; and attending religious services on certain days or at certain times. What is a reasonable accommodation? Employers are required to reasonably accommodate the religious practices of an employee or applicant unless the accommodation would cause an “undue hardship,” which may occur when the accommodation would require more than ordinary administrative costs. For example, adjusting rest breaks to accommodate daily prayers likely wouldn’t involve an undue hardship. Employers aren’t required to accommodate employees if doing so would require changing a bona fide seniority system. For instance, if shift schedules are determined by a seniority system, such as one described in a union contract, the employer isn’t required to give a shift to an employee as an accommodation if it would require bumping an employee with seniority. Options for reasonable accommodations include flexible arrival and departure times, floating or optional holidays, flexible work breaks, use of lunchtime in exchange for early departure, staggered work hours, and permitting an employee to make up time lost because of the observance of religious practices. Voluntary swapping of shifts also may be a reasonable accommodation. Lessons from Abercrombie In the Abercrombie case, the assistant manager assumed that the otherwise qualified applicant was wearing a head scarf during her interview because she is Muslim. After confirming with the district manager that the head scarf wasn’t permitted under Abercrombie’s uniformly applied dress code, the assistant manager declined to make a job offer because the applicant was believed to be Muslim and would need to wear the head scarf at work. Here are some of the lessons we can learn from this case: