The Religious Elephant in the Room

The Religious Elephant in the Room

By Stephen Nelson | What is the lSteveN_bioevel of knowledge an employer must have to be liable for religious discrimination under Title VII?  Title VII of the Civil Rights Act prohibits discrimination based on religion, which requires that employers make reasonable accommodations for employees’ religions.

Later this month, the United States Supreme Court will hear a case that may determine the extent to which an employer must know that a prospective employee requires an accommodation to observe and practice his or her religion.  In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., a young girl who wears a head covering known as a hijab for religious reasons applied for a job at the clothing store Abercrombie & Fitch.  The company’s “Look Policy” forbids its sales employees from wearing “caps.”  The interviewer assumed correctly that the applicant wore the headscarf for religious reasons, but the applicant did not inform the interviewer of that fact.  The company decided against hiring the applicant.

After the applicant won at trial, the Court of Appeals held that the store should have prevailed because the store did not have actual knowledge—i.e., the applicant did not communicate verbally or in writing—that the hijab was a religious garment and that she required an accommodation in light of the store’s policy.  The Court of Appeals relied in part on regulations from Title VII and the Equal Employment Opportunity Commission that prevent employers from asking about an applicant’s religion.

The Supreme Court will presumably resolve the question of what constitutes sufficient notice to an employer that an employee requires a religious accommodation to trigger the duty to accommodate.  Where the Supreme Court ultimately draws the line may create a trap for the unwary employer who cannot legally ask an employee about his or her religious beliefs but may obtain sufficient knowledge of them to put the employer at risk of Title VII liability if it takes an adverse action against him or her.

In the interview context, the result could encourage employers to appear as ignorant as possible regarding their applicants’ religious beliefs or could saddle employers with liability based on the subjective suppositions of the particular interviewer.  The ruling could also affect how employers treat existing employees, about whom they have greater knowledge that might exceed a lower notice threshold.  Cases from other courts of appeals, for example, have involved employees attending religious-conversion ceremonies or funeral rites, and the courts had to consider whether the employers had notice of the events’ religious nature and employees’ need for accommodations.

Whatever the result of this case in the Supreme Court, employers should educate themselves about the type of information that may trigger Title VII’s accommodation requirement to allow employees to observe and practice their religion. To learn more, contact Steve Nelson.


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