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Employment Practices: Head Scarf Ruling and Workplace Discrimination


Employment Practices Head Scarf Ruling and Workplace DiscriminationThe Supreme Court (8-1) recently ruled that Abercrombie & Fitch violated the nation’s ban on religious discrimination after the retailer didn’t hire a Muslim teenager who wore a headscarf known as a hijab to her interview. What does this mean for businesses and their hiring and employment practices?

Here are the basic facts of the Abercrombie & Fitch case: Samantha Elauf applied for the sales job in in 2008 at one of the retailer’s stores in Tulsa, Oklahoma. She was recommended for hire by an interviewer, but Abercrombie at that time had a “look policy” that bars the wearing of caps by its salespeople, and she didn’t get the job. The retailer also said she didn’t ask for an accommodation during the interview.

The Equal Employment Opportunity Commission (EEOC) took up the case, and the U.S. District Court ruled in favor of Elauf, awarding her $20,000 in damages. The 10th U.S. Circuit Court of Appeals reversed the decision, concluding that an employer cannot be held liable under Title VII of the Civil Rights Act for failing to accommodate a religious practice until the applicant provides the employer with actual knowledge of his or her need for an accommodation.

The Supreme Court disagreed, and overturned the lower court’s ruling. “An applicant need show only that his [her] need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his [her] need,” Justice Antonin Scalia wrote for the majority.

The case was being closely watched by other retailers with “look policies” as well as religious liberty groups who believe that an employee shouldn’t have to explain their religious justification if the employer already has reason to know it. “The significance of today’s ruling is that an employer cannot put its head in the sand when it has reason to believe that an applicant will need a religious accommodation,” said Gregory Lipper of Americans United for Separation of Church and State, who joined a brief in favor of Elauf. “It means that if an employer thinks a potential employee needs a religious accommodation, than the employer needs to make a reasonable effort to accommodate; it can’t reject the applicant and then plead ignorance,” he said.

In the meantime, Abercrombie & Fitch said in a statement that it “remains focused on ensuring the company has an open-minded and tolerant workplace environment for all current and future store associates” while weighing what steps to take next in the litigation. The retailer has since changed its dress code to allow associates to be “more individualistic,” and it has granted “numerous” religious accommodations to employees, including wearing hijabs, when asked.

This ruling has implications for businesses to consider. According to an article in Business Insurance, C.R. Wright, a partner at law firm Fisher & Phillips L.L.P. in Atlanta, who was not involved in the case, states: “It seems employers are going to have to use their intuition, based on what they see, to determine whether they are obligated to provide a religious accommodation.” Also questioning how businesses should proceed is Jeanine Gozdecki, a partner at Barnes & Thornburg L.L.P. in South Bend, Indiana. “Are we supposed to guess as to whether somebody might need an accommodation? How do we ask that question without venturing into areas of stereotyping, or … asking about things that are actually prohibited?”

Also interviewed in the Business Insurance article is Gerald L. Maatman Jr., a partner at Seyfarth Shaw L.L.P. in Chicago. Of the ruling, he said: [this] “confirms what many have believed, which is that religious bias cases are like disability cases in that affirmative steps must be taken by the employer to accommodate the individual in the workplace, which must initiate an interactive process.” There are “no magic words” that must first be spoken by the worker, he said.

Be sure to review your hiring procedures and all employment practices with HR and legal to ensure compliance. Also, make sure you have employment practices liability insurance (EPLI) to address allegations of discrimination and other claims. Axis Insurance Services specializes in EPLI coverage and is ready to discuss how we can procure a program that will meet your needs. Give us a call at (877) 787-5258.

Sources: NPR, CNN, Business Insurance

 

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Blogged on: June 17, 2015 by Mike Smith
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