• Religion in the Workplace Part II: When Does An Employer Have to Accommodate?
  • October 22, 2015 | Author: Michael John Neary
  • Law Firm: Lerch, Early & Brewer, Chartered - Bethesda Office
  • As loyal readers know, my previous article about religion in the workplace focused on a publication issued by the Equal Employment Opportunity Commission (EEOC) examining an employer’s duty to accommodate religious beliefs. That publication contradicted, in part, a ruling from the U.S. Court of Appeals for the Tenth Circuit in EEOC v. Abercrombie & Fitch, in which the employer refused to hire an otherwise qualified candidate because of its neutral “Look Policy.”

    The applicant, a Muslim, wore a headscarf for religious reasons. This conflicted with the no headwear prohibition contained in the Look Policy, so Abercrombie did not hire her. The EEOC sued on behalf of the applicant, claiming that Abercrombie’s decision violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, or national origin. The EEOC prevailed in the trial court, but the Tenth Circuit reversed the trial court and ruled in favor of Abercrombie. TheTenth Circuit determined Abercrombie did not violate Title VII because the EEOC could not show that Abercrombie had actual knowledge that the applicant needed an accommodation from the Look Policy because of her sincerely held religious beliefs. Thereafter, the EEOC issued its contradictory publication and asked the U.S. Supreme Court to review the Tenth Circuit ruling.

    In early June, the U.S. Supreme Court vindicated the EEOC’s position and reversed the Tenth Circuit. It held that an applicant or employee seeking to prove a disparate treatment claim under Title VII must only show that the need for a religious accommodation, confirmed or otherwise, was a motivating factor in an employer’s adverse decision. The Court rejected Abercrombie’s argument that an employer must have actual knowledge of a conflict between an applicant’s sincerely held religious practice and a work rule to be subject to a religious discrimination claim.

    The Court found that an employer acting with the motive of avoiding accommodation may violate Title VII even if the employer has only an unsubstantiated suspicion that an employee needs an accommodation. The Court explained that its ruling means an otherwise neutral employment policy must give way to the need for a religious accommodation absent undue hardship. At its core, under the Court’s ruling, an employer risks Title VII liability if it makes employment decisions seeking to avoid the duty to accommodate a religious practice even if the employer only assumes or suspects that a religious accommodation is necessary.

    Employers Can Minimize the Risk of Liability

    Following Abercrombie & Fitch, employees or applicants need not expressly request a religious accommodation to receive the protections of Title VII. Knowing this, employers should:
    • Create religious accommodation policies that will inform managers how to handle situations where a religious accommodation is suspected;
    • Train managers so they fully understand how to comply with the religious accommodation policy; and
    • Document the business justification for policies more likely to conflict with religious beliefs, such as dress, grooming, or weekend work requirements before the need for a religious accommodation is suspected.
    During such a review, the companies also should document the effect deviations from the policies will have on the business. Having this analysis done before accommodation situations arise will allow employers to consistently resolve accommodation questions based on objective criteria.

    This increases the likelihood that an employer’s decision to deny a religious accommodation because of undue hardship will withstand outside scrutiny.