The U.S. Supreme Court held this month that employers do not actually need to know of an applicant’s religious practices to be liable for discrimination in failing to hire that applicant. The opinion in EEOC v. Abercrombie & Fitch, 135 S.Ct. 2028 (2015) states that it is enough for an employer to merely suspect that an applicant practices a religion that will require an accommodation, if that suspicion played a role in the hiring decision.
Samantha Elauf arrived at her interview with Abercrombie & Fitch in 2008, wearing a headscarf, or hijab. Ms. Elauf never informed the interviewer that she wore the headscarf in accordance with her Muslim faith, and the interviewer never mentioned that such headgear might violate the dress code. Abercrombie’s “Look Policy” forbids employees from wearing “caps,” as they are considered too informal. Believing that Elauf might be wearing the headscarf for religious reasons, the regional manager in charge of the store ordered the otherwise qualified candidate to be rejected, as she would not be able to comply with the Look Policy.
Ms. Elauf filed suit against Abercrombie for violating Title VII of the Civil Rights Act of 1964, which prohibits failing to hire applicants “because of such individual’s…religion.” If an employee’s religious practices interfere with the work environment, employers have the legal duty to make reasonable accommodations, so long as doing so would not impose an “undue burden” on the employer.
Justice Scalia noted that it was “really easy” to rule this case in favor of Ms. Elauf. However, the reasoning that he used in writing the opinion for the Court makes understanding an employer’s duties much less “easy” than it was before. Even though Abercrombie did not actually know Ms. Elauf’s religious faith, or that she would require accommodations, the Court held knowledge is unnecessary. An employer can commit religious discrimination by having “no more than an unsubstantiated suspicion that accommodation would be needed” so long as that suspicion was a part of the motive in not hiring the applicant.
Justice Scalia’s “unsubstantiated suspicion” policy makes sense for Abercrombie’s particular set of facts, but becomes problematic in other situations. Assume, for example, that an applicant told an interviewer that he or she would be unable to comply with the “no cap” policy, but did not say why. The interviewer could reject the applicant for being noncompliant, but if there is any remote suspicion that the noncompliance is due to religious headgear, the interviewer risks accusations of religious discrimination for not offering accommodations. On the other hand, asking if the failure to comply is for religious reasons during an interview could create the appearance that the applicant’s religious belief is a factor in the hiring decision. The Supreme Court provides no guidance on how employers should act on their “suspicions.”
Until the wrinkles in the reasoning are ironed out, hiring managers must be especially cautious and sensitive regarding an applicant’s religious practices. With luck, the holding in Abercrombie will be considered a narrow one by future Courts, and employers can take from the case the simple bottom line rule: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”