The Supreme Court’s recent decision regarding a young woman who was denied a job at Abercrombie & Fitch after she came to a job interview wearing a headscarf provides some important lessons for contractors, especially those with dress code policies.
The justices ruled 8-1 in favor of Samantha Elauf in EEOC v. Abercrombie & Fitch Stores Inc., No. 14-86 (S. Ct. June 1, 2015). Ms. Elauf came to a job interview wearing a headscarf (known as a hijab). Ms. Elauf scored well in her interview but was not hired. The company said her headscarf violated its dress policy for sales clerks. The company maintained that it did not know the headscarf was being worn for religious reasons, as Ms. Elauf never told them. Ms. Elauf alleged discrimination and the EEOC represented her in court proceedings.
The issue before the Supreme Court was whether Title VII’s prohibition against religious discrimination in hiring applies only when an applicant has informed her potential employer of her need for an accommodation. The Supreme Court held that an applicant need only show that her need for an accommodation was a motivating factor in the employer’s decision. If circumstances would put a reasonable person on notice that a religious accommodation may be necessary to enable an applicant (or employee) to perform the job, the employer cannot merely rely on the applicant’s failure to raise the accommodation issue.
Some important take-aways from this case:
- Be sure the person(s) making hiring decisions for your company is doing so on an objective basis that is tied specifically to job qualifications.
- Don’t make assumptions about a candidate’s religion.
- If you suspect a qualified candidate (or employee) needs a religious accommodation, you should engage in an interactive process to determine whether a reasonable accommodation can be made.
Nothing in the Supreme Court’s decision prevents a contractor from having in place a reasonable dress code. However, the existence of a dress code, even one that is based on safety concerns, will not excuse an employer from engaging in an interactive process with a candidate (or employee) who asserts a need for a religious accommodation. Contractors would do well to speak with their legal counsel in such situations before determining that no reasonable accommodation can be provided.