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Faith and consequences

Gavel to Gavel

published in The Journal Record | June 11, 2015

By Kathy R. Neal

Last week’s decision by the U.S. Supreme Court on religious discrimination, EEOC v. Abercrombie & Fitch Stores Inc., may have the unintended effect of an increase in religious stereotyping in the workplace.

The lawsuit involved a Muslim job applicant in Tulsa who wore a headscarf to her interview. Although Abercrombie’s Look Policy prohibited the wearing of caps in the workplace, the subject never came up in the interview. When the retailer failed to hire the applicant because her headscarf violated company policy, the Equal Employment Opportunity Commission sued Abercrombie for religious discrimination.

Abercrombie claimed it only suspected, but didn’t have actual knowledge, that the applicant wore the headscarf for religious purposes and would need accommodation. An employer violates the anti-discrimination law when an applicant’s religion or religious practice is a factor in a hiring decision, the Supreme Court held, even when the employer only has a belief or suspicion about the need for accommodation. Employers are required to accommodate religious practices, provided the practices don’t impose undue hardship.

Not often does the need for a religious accommodation arise in an interview. Managers may suspect a potential religious conflict but not inquire into it because they think doing so is in itself discrimination. The court’s decision demonstrates that it’s permissible – if not required – for employers to initiate dialogue about an applicant’s potential need for accommodation. This may mean inquiring about and discussing an accommodation of a religious practice that may not even exist; the inquiry itself could pave the way for further discrimination claims if the applicant is not hired.

Does an employer now assume that if an applicant is wearing a Star of David necklace, she cannot work on the Sabbath and may need an accommodation in her work schedule? Must an employer ask if a bearded applicant wears his beard for religious reasons? Because the court focused on an employer’s motive, not its knowledge, and whether that motive was a desire to avoid providing religious accommodation, employers are now forced to ask questions to determine whether there is an actual need for an accommodation.

Ironically, if the need for a religious accommodation is not readily apparent, employers may find themselves relying on religious stereotyping as a basis for the inquiry.

This article appeared in the June 11, 2015, issue of The Journal Record. It is reproduced with permission from the publisher.
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