The Supreme Court has recently been quite receptive to litigants asserting their rights to religious freedom. (For Exhibit A, see Burwell v. Hobby Lobby.) On June 1, the Court in EEOC v. Abercrombie & Fitch applied that pro-religion perspective in the employment discrimination context and took a fairly strong stand against religion-based discrimination. The Court held that employers cannot hide behind facially neutral policies where religious practices are concerned. Rather, it stated that religious practices must be given “favored treatment,” and a failure to accommodate religious practices constitutes intentional discrimination under federal law, subjecting employers to damages.
In this case, a woman named Samantha Elauf applied for a job at Abercrombie & Fitch. She is a practicing Muslim and wears a headscarf. The assistant manager who interviewed her would have hired her, but was not sure whether the headscarf would violate a store policy against wearing “caps” while on the job. The assistant manager believed (correctly) that the headscarf was religious in nature, but did not ask Elauf whether she would need an accommodation. A district manager said that any headwear, religious or not, would violate the policy, and Elauf was not hired. A lower court found this discriminatory and awarded the EEOC (on Elauf’s behalf) $20,000 in damages. The Court of Appeals reversed, holding that, to be held liable on a failure to accommodate claim, the employer must have “actual knowledge” that the employee (or prospective employee) would need a religious accommodation.
Justice Scalia, writing for seven Justices, reversed. The Court held that a failure to accommodate religious practices constitutes intentional discrimination (disparate treatment) and that avoiding the accommodation must only have been a motivating factor in an employment decision. It rejected Abercrombie’s arguments that knowledge was required; instead, it stated, “an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” The employer can be held liable even if the employee had not made any request for an accommodation, as long as part of the reason for the decision is avoiding a possible accommodation. The Court even questioned whether it was necessary for the employer to know that the accommodation was religious in nature. (Justice Alito, in a separate opinion, took the Court for task for not squarely addressing the point and argued that this type of knowledge was obviously required.)
At first blush, it would appear that employers are left in a difficult situation. Title VII prevents them from asking about an employee’s religion, but they can be held responsible for not accommodating an employee’s religious practices even when the employee hasn’t requested an accommodation. Does that mean that dress codes must be rewritten to explicitly permit headscarves and yarmulkes? Must scheduling policies take into account whether people observe the Sabbath on Saturday or Sunday, or not at all?
Fortunately, the Court’s holding sweeps broadly, but not quite so broadly. Employers need not walk on eggshells, fearing that a religious practice of a Jewish, Muslim, or Seventh-Day Adventist employee might conflict with a work policy. It is the motive of avoiding an accommodation that is prohibited. So certainly, if an employee asks for an accommodation based on religious beliefs or practices, the employer cannot fall back on a neutral policy to deny it – at least unless the accommodation would place an undue burden on the employer, a high bar to meet. But that does not mean that employers cannot have such policies. It only means that they have to be sensitive to religious concerns whenever they suspect or believe that they are in play. They cannot fire or refuse to hire someone because they might require a religious accommodation.
For employees of faith, this is good news. The Court has given religion special status. The duty to accommodate is perhaps even broader than the duty to accommodate disabilities under the Americans with Disabilities Act, since there is no knowledge requirement. An employer with a no-facial-hair policy generally cannot turn away a bearded man if he refuses to shave based on his religion, or even because the employer thinks he might refuse to shave based on his religion. Employers have to give religious practices considerable leeway.
The Court’s recent expansion of religious rights has impacted employment law in complex ways. Hobby Lobby gave employers a degree of control over employees’ personal choices through their health insurance. Abercrombie & Fitch empowers employees to obtain exceptions and accommodations based on their sincere religious beliefs and practices. The uniting principle seems to be that the Court will tread carefully in protecting what it perceives as religious liberties—and therefore, so must everybody else.
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