• Supreme Court Reinstates Case of the Rejected Job Applicant Who Was Denied a Position at Abercrombie & Fitch Because She Wore A Religious Head Scarf To Her Job Interview
  • June 17, 2015 | Authors: Katherine A. Hren; Richard S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Glendale Office
  • Hiring decisions (or at least the failure to hire) just got a lot more risky thanks to an 8-1 decision issued last week by the United States Supreme Court in a case involving retailer Abercrombie & Fitch. The case, EEOC v. Abercrombie & Fitch Stores, Inc. was discussed extensively in our October 17, 2014 issue of Compliance Matters.

    The case involved a young woman who interviewed for a sales position at an Abercrombie & Fitch store in Tulsa, Oklahoma wearing a black hijab, which is a head scarf often worn by Muslim women for religious reasons. The interviewer did not ask her about the head scarf, but declined to hire the applicant because the company has a strict dress code that prohibits sales personnel from wearing any hats or other head coverings while working. Although the applicant never mentioned the head scarf or that she was Muslim, nor did she mention that she would need any sort of accommodation to address the conflict between her religious practice and Abercrombie's dress code (nor did the employer ask), the evidence at trial revealed that Abercrombie had assumed that the applicant wore the head scarf for religious reasons and denied her the job based upon that assumption.

    The Supreme Court ruled that the retailer was on the wrong side of the law because it ignored the elephant in the room (the head scarf). Instead, the retailer ought to have inquired into her need for an accommodation before rejecting her under its dress code policy. According to the Supreme Court, employers do not get to hide behind their ignorance of the possible need for an accommodation. Rather, as long as the employee can prove that her "need for an accommodation was a motivating factor in the employer's decision," which it clearly was in this case, the employment decision runs afoul of federal job bias laws.

    The Court went on to caution employers that a violation may occur even if the employer "has no more than an unsubstantiated suspicion that accommodation would be needed" and that a business may be liable for illegal religious discrimination if the applicant's potential need for an accommodation was one of perhaps many reasons for rejecting the applicant.

    The ruling underscores the need for the entire hiring team to be trained on the legal do's and don't's of interviewing and hiring. In addition, since the Supreme Court stated that the applicant's right to be free from religious discrimination trumped the retailer's dress code policy, employers are well advised to review all hiring restrictions of this nature with expert employment counsel.

    Some commentators have misconstrued the Supreme Court's decision to affirmatively require employers to begin asking job applicants about their religious practices as a means to avoid a similar claim. However, in our estimation, the case does not stand for that proposition and we do not recommend such questions in most cases. However, when faced with an applicant that may need an accommodation (example: a bearded applicant seeking a job in a company with a no beard policy), there may indeed be a need for the interviewer to deftly raise the issue and explore accommodations. There may also be some well worded job application questions that can ferret out this kind of information.