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THINK AN APPLICANT MIGHT NEED A RELIGIOUS ACCOMMODATION? THINK AGAIN BEFORE REFUSING TO HIRE ON THAT BASIS

As most employers know, Title VII prohibits refusing to hire an applicant to avoid accommodating their religious practices (unless it would be an undue hardship). But is it unlawful not to hire an applicant because you suspect she might require a religious accommodation – even if the applicant has not yet requested one? Yesterday the Supreme Court answered yes.

In EEOC v. Abercrombie & Fitch Stores, Abercrombie’s dress code prohibited employees from wearing caps. A Muslim applicant interviewed wearing a headscarf, but did not request an accommodation under the dress code. When the interviewer sought guidance from a supervisor (and said she believed the headscarf was religious), the supervisor decided not to hire the applicant because her headscarf conflicted with the dress code.

The Supreme Court made two key points. First, even “an unsubstantiated suspicion that accommodation would be needed” (without an actual request) is enough to violate Title VII if it plays a motivating factor in the employer’s decision not to hire. So the bedrock rule is “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Second, a policy can still be discriminatory even if (like Abercrombie’s no-cap policy) it was equally applied to everyone. Religious practices get “favored treatment” under Title VII, and so otherwise neutral employment policies may have to “give way to the need for an accommodation” if religion comes into play. Under both these principles, employers should tread carefully whenever they at least suspect an applicant or employee might need a religious accommodation.

If you have Employment or Title VII questions, please contact: Mike Birrer or Parker Graham.

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