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Feb 26, 2015

By Eric B. Meyer

Yesterday, the U.S. Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc.

In Abercrombie, the company did not hire a woman who wore a headscarf at her interview, because she did not conform to the company’s Look Policy.

The issue before the Supreme Court was whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required, and, the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

The Justices question Abercrombie’s approach

At oral argument, Abercrombie argued that putting the onus on the employer to ask an applicant questions about religion would lead companies to treat people differently based on their religion.

Justice Elena Kagan was skeptical:

Now, people can disagree about whether one can ask those questions in a way that’s awkward at all, but you’re saying we should structure the whole legal system to make sure that there is no possibility of that awkward conversation ever taking place. But the alternative to that rule is a rule where Abercrombie just gets to say, we’re going to stereotype people and prevent them from getting jobs. We’ll never have the awkward conversation because we’re just going to cut these people out and make sure that they never become Abercrombie employees. Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worst problem?”

What if the applicant isn’t aware of the Look Policy?

And, in response to Abercrombie’s argument that the applicant should be the one to raise the issue of religious accommodation, Justice Ruth Bader Ginsburg questioned how that would work where the applicant doesn’t know about an employer’s Look Policy:

Here the employee had no reason to think that there was anything offensive about her dress. How can she say, by the way, I have a religious reason for wearing this headscarf, when from everything, from all appearances, the employer doesn’t care. It’s okay to wear a headscarf. Then the employer has not given her notice of this Look Policy, so how is she supposed to intrude the question, that as far as all appearances go, it’s fine, that she’s wearing a headscarf. There’s no Look Policy that the employee knows that’s violated.”

Back when I blogged about this case before, I looked in my crystal ball and said that Abercrombie would prevail because only “actual notice of a particular individual’s sincerely-held beliefs would create a duty to accommodate them.”

But Justice Ginsburg’s point is well taken. Indeed, both she and Justice Samuel Alito surmised that the employer doesn’t need to broach the touchy subject of religion at an interview:

All [the employer has] to do is say, “This is what our Look Policy is, do you have any problem with it?” As Justice Alito pointed out a while back, don’t have to probe anything about religion.”

What the Court may do

So, yeah, about my prediction.

Let’s revise it slightly: I don’t see the Supreme Court requiring a company to initiate a discussion of religious accommodations when it merely believes that an applicant may need one.

However, the Alito approach is a good compromise. Kinda like an employer would vet an applicant whom it believes may be disabled — Here’s a requirement of the position, will you be able to fulfill it? If a religious accommodation is needed, the burden then shifts to the applicant to place the employer on actual notice, at which time the two sides can engage in an interactive process to determine whether a reasonable accommodation is available.

Yeah, I like that. What do you think? Hit me up in the comments below.

 originally published on Eric B. Meyer’s blog, The Employer Handbook.