A decision by the U.S. Supreme Court on June 1, 2015 has put employers on notice about religious attire and their employment and hiring practices.
The high court held that an employer’s dress code prohibiting all headwear is not a defense against religious discrimination liability, even in cases where an employer suspects – but is not sure – that an applicant’s or employee’s garb is worn for religious purposes.
In this case, a woman who had worn a hijab headscarf to an interview was eventually denied a position with the retailer despite the fact that the interviewer had recommended her for hiring.
An Abercrombie & Fitch assistant manager, who said she suspected the applicant wore the headscarf for religious purposes, opted not to hire the woman because her headscarf violated the company’s ban on any type of headwear.
The interviewer had never asked the applicant if she wore the scarf for religious purposes, but the court ruled that the applicant “need only show that his [or her] need for an accommodation was a motivating factor in the employer’s decision.”
The Supreme Court held that the assistant manager’s mere suspicion that the headscarf was religious in nature could establish intentional discrimination under Title VII because an “employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
On that basis, the court reinstated the applicant’s previously dismissed lawsuit and remanded the case for further proceedings.
With this ruling in mind, you as an employer must ensure that your company dress code, as well as other policies, is religiously neutral. In most cases concerning clothing it’s likely that accommodating an employee is reasonable, unless there are health and safety concerns, like a loose hajib getting caught in machinery and posing a danger to the employee or others.
The legal news website Law360.com has the following advice for employers:
Don’t ask about religion – Attorneys told Law360 to never ask about an applicant’s or employee’s religion first. At the same time, don’t ignore any conflicts with your dress code or if they have special scheduling requirements because of their religion.
During interviews, you should instead focus on company policies and make essential job requirements clear if you suspect there is potential for a conflict with their religious beliefs. Once you’ve done that, you can ask them if these requirements and policy would bring up personal conflicts for them.
If they answer that it would bring up conflicts, then you can ask why and have a discussion based on what the interviewee discloses. In other words, don’t be the first to bring up religion.
While you likely won’t have to do this with most applicants, if someone shows up to an interview dressed or groomed a certain way, you should be prepared to make clear your firm’s requirements.
When in doubt, summon HR – In the Abercrombie & Fitch case, the interviewer spoke with her supervisor and didn’t seek advice higher up the food chain, like the human resources department. Had the interviewer taken that step, the entire legal conflict may have been avoided and you might not be reading this.
Also, if an employee or applicant does make a request for accommodation, the issue should be immediately taken to HR.
Train managers, supervisors – Train your managers and supervisors in the above two points, especially that they take any questions to HR.
Training is especially important if managers and supervisors don’t always have access to your HR office. And training works, as evidenced by the decline in harassment cases after most firms institute training.
To be thorough, you should school them in the requirements of Title VII and the requirements of other anti-discrimination laws on the books.
Don’t be hung up on a “look” – Attorneys interviewed by Law360 said that companies should steer clear of “image-based” policies, that aim to present a cookie-cutter workforce. These kinds of policies can lead to accusations of discrimination – and the Equal Employment Opportunity Commission taking action against your organization.
Abercrombie & Fitch had such a policy, dubbed “The Look,” which went to extremes, according to the website buzzfeed.com, including at one point requiring that:
• Fingernails be no more than a ¼ inch beyond the tip of the finger, and preferably unpolished,
• “Sunkissed” highlights were okay, but no “extreme styles” and “hair styles and hair color should reflect your natural beauty.”
• No facial hair.
• Makeup must look “natural” and match skin tone.
Consider accommodation Title VII bars refusing to hire an applicant because of the need for a religious accommodation that could be provided without causing the employer “undue hardship.” That means “more than a de minimis cost or burden on business operations.” This bar is lower than what constitutes “hardship” under the Americans with Disabilities Act.
For the most part, it’s a safe bet that most religious attire would be okay in the workplace, particularly a hijab.
Insurance – Finally, you should have in place, Employment Practices Liability Insurance, which will cover your company in case you are sued for any type of discrimination or other employment issues. Call us for details.