Do we have to ask for religious accommodation?
Today, the Supreme Court heard oral arguments in a case that pits the concept of religious accommodation against company dress codes and hiring practices.
Just writing it out makes it sound depressing, doesn’t it? The facts don’t make things much better. Back in 2008, Samantha Elauf, an observant Muslim, applied and was interviewed for a job at teen-friendly retailer Abercrombie & Fitch. She impressed the hiring manager, but when the time came to make a decision, the manager decided not to hire Samantha because she had concerns about whether or not Samantha would insist on wearing her headscarf to work. This would have been a violation of Abercrombie’s “Look Policy,” which dictates that employees conform to a strict set of style guidelines that specifically prohibit head coverings and black clothing.
After Samantha failed to get the job, a friend of hers already employed with the retailer asked the hiring manager for her reasons, and the manager indicated that the headscarf played a part in her decision.
Welcome to the Supreme Court, Abercrombie. Enjoy your stay.
The EEOC sued on Elauf’s behalf on grounds of religious discrimination, and down came a $20,000 award in favor of her case. The 10th circuit overturned the decision, saying that because Elauf never asked for an accommodation, the company wasn’t liable for not offering one; the Court was uncomfortable holding employers to a standard that would require them to ask about a religious exemption they may not know an employee needs.
Sixteen advocacy organizations filed briefs arguing against a standard that would place the burden of seeking religious accommodation solely on the employee or applicant. Elauf has found friends in activist communities—and not just those related to the Muslim community:
One brief, filed by Jewish groups, noted that one of the law’s purposes was to protect Orthodox Jews, who cannot work from sundown Friday to nightfall on Saturday, in addition to various Jewish holidays.
In a separate brief, the American-Arab Anti-Discrimination Committee and other Muslim organizations cite what they call “pervasive employment discrimination” against Muslims. The wearing of hijab has been recognized by the government as a protected religious practice, the brief said.
Christian organizations that weighed in include the General Conference of Seventh-day Adventists and the National Association of Evangelicals.
Abercrombie has the backing of business groups, including the U.S. Chamber of Commerce. The company has faced other lawsuits including one in which it agreed in 2004 to pay $40 million to several thousand minority and female plaintiffs who had accused the company of discrimination.
SCOTUSblog explains the proposed standards currently in play:
The federal government urges the Court to rule that a job applicant like Elauf should not be solely responsible for asking a would-be employer to accommodate her religious beliefs. Instead, it argues, an employer can’t refuse to hire someone based on its understanding of her religious practices if that understanding is correct – as it was in this case, when the assistant manager understood that Elauf was wearing the scarf because she is a Muslim, even if Elauf did not specifically say so. Otherwise, the government complains, employers could easily get around the anti-discrimination laws as long as they aren’t certain about an applicant’s religious practices. And, it adds, an employer is often in a better position than a would-be employee to know its rules and whether they might conflict with an employee’s religious practices.
Abercrombie counters that assigning that burden is far more complicated than the government would have the Court believe. How, it asks, are employers supposed to know whether an applicant will want or need an exemption from their rules? This is particularly difficult, it notes, when the anti-discrimination laws protect all would-be applicants, even if their religions aren’t well known or the members of that religion don’t necessarily agree on what their faith requires. Moreover, Abercrombie adds, an employer isn’t supposed to ask a job applicant about her religion at all. Even the EEOC’s earlier statements had previously acknowledged this difficulty, it points out, by requiring a job applicant to ask the employer to work with her to accommodate her religious beliefs. And that rule has worked well for over forty years.
My biggest concern? How either of these proposed standards will work when we’re all too busy tiptoeing around each other to have an honest discussion about religious differences (or lack thereof.) I can’t remember when the activist set last allowed people to ask, “where are you from?” much less a pointed question about whether or not the person you’re interviewing will insist on keeping her headscarf on during her shift.
Legal perspectives aside, it blows my mind that a hiring manager wouldn’t stop and think as to whether or not declining to hire someone based on a potential question about a headscarf might not be the best call. On some level, it’s not a religious issue—it’s a human issue. Just ask the question!
Then again, in this world of the perpetually offended, you never know what kind of reaction a question like that will get you.
We’ll keep you updated on the Court’s decision—and the potential ensuing chaos that follows.
The case is EEOC v. Abercrombie & Fitch.DONATE
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