• Dean Royer

Employer duty to accommodate religion

Can an employer discriminate based on religion if the employee does not ask for an accommodation of her religious practice?

Under a federal employment discrimination law (Title VII), an employer cannot refuse to hire someone to avoid accommodating a religious practice that it could accommodate without under hardship. In EEOC v. Abercrombie & Fitch Stores, Inc. (U.S. June 1, 2015) 2015 U.S. LEXIS 3718, the U.S. Supreme Court decided if this rule applies when the applicant did not inform the employer of the need for an accommodation.

Samantha Elauf, who wears a headscarf as part of her practice of Islam, applied for a position in an Abercrombie & Fitch store. The store’s assistant manager rated her qualified, but expressed concern that Ms. Elauf’s headscarf might violate Abercrombie & Fitch’s Look Policy that prohibits employees from wearing “caps.” The matter went up to the district manager who determined that the headscarf would violate the policy.

The Equal Employment Opportunity Commission sued Abercrombie & Fitch under Title VII. The trial court ruled in the EEOC’s favor. A federal court of appeals overturned that decision, concluding that in a religious accommodation case an employer cannot be liable unless the employee provides the employer notice of her need for an accommodation.

The Supreme Court first reviewed Title VII’s rules regarding religious discrimination. An employer violates Title VII if it fails to hire someone because of that person’s religion, which includes a religious practice. “Because of” means a person’s religion cannot be a motivating factor for the employment.

The court in EEOC noted that the Title VII law does not have a requirement that the employer have knowledge of a job applicant’s need for an accommodation. In contrast, other employment discrimination laws do have such a requirement: for example, the Americans with Disabilities Act requires employers to provide reasonable accommodations to applicants with known physical or mental limitations. Based on this difference, the Supreme Court determined that Title VII focuses on motive rather than knowledge.

The impact of this focus is that an employer does not violate Title VII if it has knowledge of the need for an accommodation but makes a decision motivated by a lawful reason. But an employer violates VII even if it has no such knowledge but is motivated by an unlawful reason such as a job applicant’s religion.

The Supreme Court ultimately described the rule as follows: an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. It also determined that an employer cannot avoid liability by relying on a policy that applies to all employees. As in this case, an employer has a duty to accommodate a religious practice, which takes precedence over any conflicting employer policy.

#Discrimination #Religiousaccommodation #TitleVII

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