Both New York and federal laws prohibit employers from discriminating against current or prospective employees based on their religion. As part of this prohibition, employers are required to make reasonable religious accommodations for employees’ religious practices. It sounds simple enough, but in practice, new situations frequently arise where the employer’s obligation is less than clear.
The United States Supreme Court will soon be providing some much-needed clarification on one issue: what is an employer’s obligation to offer an accommodation when a prospective employee does not explicitly tell the employer that a certain piece of attire is worn for religious reasons? That may sound a little abstract, but the background of this religious discrimination case elucidating.
Headscarf Against Company Policy
Like many teenagers, Samantha Elauf applied for a job at her local Abercrombie & Fitch in Tulsa, Oklahoma. Elauf didn’t get the job because of the hijab (headscarf) she wore to her interview. The headscarf conflicted with Abercrombie’s “Look Policy” which prohibits head coverings and the color black in an effort to ensure that employees exude the company’s signature East Coast preppy look.
Elauf sued claiming the company’s refusal to hire her was religious discrimination under federal law. The Equal Employment Opportunity Commission (EEOC), the federal fair employment agency, agreed and took up Elauf’s case. In its defense, Abercrombie raised the fact that Elauf never told her interviewers or anyone else at the company that she wore the headscarf for religious reasons. The Abercrombie interviewers testified that they “thought” Elauf wore the headscarf for religious reasons. Is that enough to prove religious discrimination? It’s not clear under current case law.
U.S. Supreme Court Hears Discrimination Case
The case has worked its way up to the U.S. Supreme Court, which recently heard oral arguments. The EEOC argued that an employer that “correctly understands” an applicant’s religion and refuses to hire them on that basis is subject to liability for religious discrimination, even where the prospective employee offers no explicit acknowledgment of their religion. In contrast, Abercrombie’s lawyers argued that applicants should have to affirmatively tell employers about the religious reason behind their attire.
The Supreme Court justices were torn, but seemed to lean in favor of adopting a middle-ground approach where the employer would have an obligation to inform a prospective employee about its work rules and ask if the applicant could comply. Theoretically, this would open the dialogue and provide the applicant with an opportunity to request a religious accommodations.
Justice Alito provided perhaps the most memorable illustration of the day when he asked Abercrombie’s attorney to imagine four job applicants: “a Sikh man wearing a turban… a Hasidic man wearing a hat…a Muslim woman wearing a hijab and a Catholic nun in a habit.” He then asked whether the attorney thought “that those people have to say, ‘we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement.’”
We anticipate an opinion from the Supreme Court by the time its session wraps up in late June. The decision will impact employers and prospective employees alike.
Have You Faced Discrimination Based on Religion?
If you think you’ve been discriminated against by your employer or a prospective employer based on your religion or other protected class such as age, gender or race, contact the employment law attorneys Joseph & Norinsberg today at (212) JUSTICE or by e-mail at [email protected] to discuss your legal options.