Tag Archives: religious discrimination

Employer May Not Refuse to Hire Applicant Based on Suspicion of Need For Religious Accommodation

Epic2arly last week, the U.S. Supreme Court handed down its decision in EEOC v. Abercrombie & Fitch Stores, Inc. In that case, a young Muslim woman who wore a hijab (a religious headscarf) to her interview was denied employment because the headscarf violated Abercrombie’s “look policy,” which did not allow head wear of any kind. Without discussing the policy with the applicant, Abercrombie simply denied her employment.  (For more about the facts of this case, see our previous post, How Explicit Must a Request for Religious Accommodation Be?)

The Supreme Court ultimately held that Abercrombie engaged in religious discrimination by refusing to hire the applicant, Samantha Elauf. In doing so, the court rejected Abercrombie’s argument that it didn’t actually know that Elauf wore the headscarf for religious reasons. The Court held that actual knowledge is not a requirement for religious discrimination under Title VII. It was enough that Abercrombie suspected that Elauf would need an accommodation and that this was the motivation behind its refusal to hire her.

The Court’s holding suggests that Abercrombie should have notified Elauf about the “look policy” during the application process and explored possible accommodations with her. The result makes practical sense. How would Elauf have known that she needed an accommodation if she wasn’t aware of the company’s “look policy”?

The takeaway from this decision is that employers need to consider offering religious accommodation to employees, even if the employees don’t specifically request it. When an employer has reason to suspect that an employee may need an accommodation, it should broach the topic with the employee. However, employers acting on such suspicions must be careful not to engage in stereotyping that could lead to discrimination claims.

The best approach is to stick to objective facts and company policy. For example, it could lead to trouble to ask an applicant, “Do you wear a headscarf because you are Muslim?” Instead, simply inform the applicant of the company’s established policy that head wear of any kind is not allowed, and then ask if that would present any issues for the applicant. This puts the ball in the employee’s court and gives her the opportunity to request a religious accommodation if she needs one. (For more information on religious accommodation, see our Religious Discrimination page.)

How Explicit Must a Request for Religious Accommodation Be?

AUS Supreme Courtbercrombie & Fitch is the subject of a religious discrimination lawsuit, after refusing to hire a young Muslim woman who wore a hijab – a religious headscarf – to her interview. In 2008, 17-year-old Samantha Elauf applied for a sales job with the famous retailer at one of its locations in Tulsa, Oklahoma. The store manager thought that Elauf was a good candidate for the position, but wasn’t sure if she could work for the store wearing the hijab. The store manager asked the district manager if a Muslim applicant could wear a hijab at work. The district manager replied that the store could not make any exceptions to its strict “look policy,” which did not permit headwear of any kind. Abercrombie did not discuss the policy with Elauf before rejecting her. The case has made its way up to the United States Supreme Court, which is scheduled to hear oral arguments this Wednesday.

Under Title VII of the Civil Rights Act, it’s clear that employers must provide reasonable accommodations to employees based on their religious beliefs, unless it would create an undue hardship (for more information, see our article on religious accommodation in the workplace). In general, the employee must notify the employer of a need for accommodation before the employer is required to act. But what if the employer knows of the need for accommodation, but the information wasn’t explicitly provided by the employee?

That’s the question that is at the center of this dispute. According to Abercrombie, under Title VII of the Civil Rights Act, the burden is on the applicant to request an accommodation for his or her religious beliefs. Employers are not expected to be mind-readers, and what’s more, employers are not allowed to ask employees about their religious beliefs in interviews.

However, according to EEOC, Abercrombie store managers knew that Elauf wore the hijab for religious reasons, which imposed a duty on Abercrombie to start a discussion about reasonable accommodation. At the very least, Abercrombie should have informed Elauf of the dress code. After all, how would Elauf know to request an accommodation if she was unaware that  headwear was prohibited by company policy?

The Supreme Court’s decision could provide some much needed clarification on just how far employees must go to request religious accommodations. The Court is scheduled to issue a decision in late spring or early summer.

Are Employer-Mandated Vaccinations Legal?

Disney made hessadlines this week after asking unvaccinated employees to get the measles vaccination before returning to work. This comes after news of a recent measles outbreak that can be traced back to the happiest place on earth, when an infected visitor arrived at the park back in December of 2014. Since then, the disease has quickly spread, infecting over 100 people in 14 states. In an effort to contain the spread of the disease, Disney has strongly encouraged its 27,000 employees to show proof of vaccination or get vaccinated at its cost.

While the measles might not be an immediate threat to most other workplaces, the issue of employer-mandated vaccinations comes up in many other contexts. Most commonly, the issue comes up when the flu season rolls around. According to the Centers for Disease Control and Prevention, the flu causes $6.2 billion in lost productivity each year. To prevent such loss, employers may be tempted to require all employees to get the flu vaccine. The question is: Can employers legally do this?

In every state except Montana, the default rule is that employment is at will. This means that employers may fire employees at any time and for any reason, as long as the reason is not illegal. In general, employers are free to place conditions on employment, including requiring employees to get vaccinated.

The problem, however, arises when the mandatory vaccination rule is applied to certain individuals. In particular, mandatory vaccination policies may violate federal antidiscrimination laws. Title VII of the Civil Rights Act makes it illegal for an employer to discriminate against an employee on the basis of religion, while the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of an employee’s disability. Employees who refuse to get vaccinated due to religious beliefs, or who are unable to get vaccinated due to disabling health conditions, are protected under these laws. Employers cannot fire these employees for refusing to get vaccinated, nor can they ask questions that delve too deeply into an employee’s religious beliefs or medical condition.

Because of the potential for illegal discrimination, many employers – like Disney – choose to encourage, but not require, vaccinations. Employers can create incentives for their employees to get vaccinated, such as footing the bill or having on-site vaccinations available at the workplace. Employers can also prevent the spread of disease by giving employees sick leave or allowing sick employees to work from home while they’re contagious.