Hiring without risking religious discrimination

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The impacts on employers of the U.S. Supreme Court’s June decision siding with a Muslim-American woman who was not hired by a national clothing chain store because she was wearing a headscarf will be discussed Tuesday during a lunchtime continuing legal education course at the Telesca Center.

James Holahan and Subhash Viswanathan, labor and employment attorneys at Bond Schoeneck & King PLLC, will present “The Supreme Court’s Decision in EEOC v. Abercrombie: What Can Employers do to Reduce the Risk of Religious Discrimination Claims in the Hiring Process.”

The program will cover topics that labor and employment attorneys and human resource professionals need to know including policies and procedures to minimize risk of religious discrimination in the hiring process and employers’ obligation to accommodate employees’ religious beliefs.

The case, EEOC v. Abercrombie & Fitch Stores Inc., 575 U.S. __ (2015), began in 2008 when 17-year-old Samantha Elauf, a practicing Muslim, applied for a job at an Abercrombie & Fitch store in Tulsa, Oklahoma while wearing a headscarf, which she claimed was the reason she was not hired.

The Equal Employment Opportunity Commission filed suit on her behalf in 2009, alleging a violation of Title VII of the Civil Rights Act of 1964, prohibiting a prospective employer from refusing to hire an applicant because of a religious practice that could be easily accommodated.

The EEOC prevailed in the District Court but was reversed by the U.S. Court of Appeals for the Tenth Circuit, which found the failure to accommodate is required only when the applicant tells the employer an accommodation is needed.

The Supreme Court ruled an applicant need only show the need for an accommodation was a motivating factor in the employer’s decision. In other words, it found Elauf successfully showed Abercrombie & Fitch did not hire her because of her religion or religious practice.

“Title VII requires no knowledge requirement,” the high court held in an 8-1 decision delivered by Justice Antonin Scalia with Justice Clarence Thomas dissenting in part.

Holahan said the case, which was sent back down, has since been settled.

“It is significant in the sense that if found an employer could violate Title VII prohibitions against religious discrimination by failing to accommodate a religious practice of which it was essentially unaware,” he said, noting the clothing store had a policy of accommodation and had accommodated a number of situations involving headdress where it knew it was based on religious practice.

“Their point in this case was they didn’t have any reason to believe this was worn for religious accommodation,” Holahan said. “I think the technical issue, based on court cases to date, that the company was pressing, was ‘How can I discriminate if I don’t know you’re wearing the headscarf for religious purposes.’”

Holahan said it was not determined whether Elauf wore the headscarf for religious purposes, but because the Supreme Court found Abercrombie & Fitch believed she did, it failed to accommodate her. More importantly, Holahan said, is the attention the case has drawn to the duty to accommodate religious observance.

That will not be the only case discussed during the program. Holahan, a member of Bond’s Rochester office, said he is surprised at the number of cases EEOC has brought on behalf of individuals, something he said it rarely does unless there is a broad application.

Other cases that will be discussed involve a Seventh-day Adventist in North Carolina who was allegedly fired for not being able to work on Fridays, and one pending from Long Island in which the EEOC alleged an employer required its employees to engage in religious activities under a system it called Onionhead, or Harnessing Happiness. The employer maintains it is a management system and not a religious practice.

Holahan and Viswanathan, a member of Bond’s Syracuse office who has closely followed the Abercrombie case, will also talk about related issues employers need to watch.

“I think one of the key things is to make sure your equal employment opportunity policy makes sure you will accommodate religious practices and raise those issues in a timely fashion,” Holahan said. “There are a number of things that are kind of related to this whole idea of religious observance and Sabbath observance, the multiple ways that these issues can arise.”

He said Title VII not only protects mainstream religions, but anything that falls in a very broad framework of belief systems.

“It’s a difficult obligation to understand and respond to, so hopefully anybody that comes to the seminar will be better prepared to do that,” Holahan said.

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