In EEOC v. Abercrombie & Fitch, No. 14-86 (June 1, 2015), the national retail clothing chain declined to hire Samantha Elauf (“Elauf”), a practicing Muslim. Abercrombie & Fitch Stores, Inc. (“Abercrombie”), maintains a “Look Policy” that governs its employees’ dress consistent with the style that Abercrombie seeks to project for each store. The “Look Policy” prohibits “caps”, but did not define the term “cap”. Elauf wore a headscarf as a part of her religious practice during the job interview. Neither the headscarf nor Elauf’s religion were discussed, and Elauf did not unilaterally request a religious accommodation for her headscarf.
The interviewer gave Elauf a rating that qualified her to be hired, but she was concerned that Elauf’s headscarf would conflict with the store’s “Look Policy.” The interviewer assumed Elauf wore the headscarf because of her religion. Abercrombie declined to hire Elauf because her headscarf violated the “Look Policy,” as would all other headwear, religious or otherwise.
The EEOC sued Abercrombie on Elauf’s behalf claiming that the company’s refusal to hire Elauf violated Title VII. Abercrombie argued that it never knew that Elauf needed a religious accommodation. The Supreme Court declared that an employer does not need “actual knowledge” of a job applicant’s need for a religious accommodation in order to violate Title VII. Instead, to prevail in a claim under Title VII, an applicant is only required to demonstrate that her need for an accommodation was a motivating factor in the employer’s decision – not that the employer had actual knowledge of the need for an accommodation.
1. Draft a Religious Accommodation Policy. If an employer does not have a policy on religious accommodation, a policy and procedure related to religious accommodation should be drafted as soon as possible.
2. Training. Managers should be thoroughly trained on the obligation to provide religious accommodation before they are given authority on behalf of the employer to make or affect a hiring decision.
3. Document. Documentation is essential to a proper defense. After interviewing candidates, it is critical for an employer to document why a candidate was chosen over the other candidates. If an accommodation will cause an undue hardship on the employer’s business, such undue hardship should be clearly documented and articulated.
4. Understand a Request for Religious Accommodation. If a job applicant requests a religious accommodation during the interview, the hiring manager should only ask those questions necessary to understand the request and nothing more. Such requests should be clearly documented and provided to Human Resources and/or the employer’s labor and employment counsel for further direction and analysis.
Michael McCain is the lead employment law attorney at Eckberg Lammers. Mike represents businesses, municipalities and public employers in labor, employment, and business law matters. He may be reached at 651-439-2878 or firstname.lastname@example.org.