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Earlier this week the Supreme Court ruled 8-1 against Abercrombie in a highly publicized (and important for HR professionals) lawsuit regarding religious accommodation in the workplace. To summarize the facts, a 17-year-old applied to work at Abercrombie after a friend encouraged her to do so. She received high marks from a store manager during the interview, but there was a concern that her appearance would violate the company’s dress code or “Look Policy” as Abercrombie titles it, which prohibited wearing hats. The manager was concerned the applicant would violate this policy when working for the company because the applicant is a practicing Muslim and wore a headscarf to the interview. They never discussed the headscarf issue. The applicant was denied the job because the manager thought she would violate the dress code if offered the job.

At issue in this lawsuit is not whether employers need to accommodate an applicant’s sincerely held religious beliefs, absent an undue hardship. That question has been litigated and upheld time and again by the courts. The primary issue in Abercrombie is whether an employer needs to reasonably accommodate a prospective employee who does not inform the company of the need for a reasonable accommodation and whether it is discriminatory not to hire someone because of the perceived need for an accommodation. “Yes” is the resounding answer from the Supreme Court. Abercrombie argued that it does not have to reasonably accommodate someone’s religious faith if it does not have actual knowledge of the applicant’s need for an accommodation. The Supreme Court, taking the EEOC’s side on this, disagreed with Abercrombie, finding that if the applicant’s need for an accommodation was a motivating factor in the company’s decision not to hire her that is sufficient to prove a violation of federal employment discrimination laws.

One of the take-home points for employers is not unique to the Abercrombie decision, but a lot of companies fail to understand that federal anti-discrimination laws, for example the need to reasonably accommodate a person’s religious belief pertains with equal force to applicants as well as current employees. More directly on point with the Abercrombie decision, employers now have clarity that they cannot make adverse employment or hiring decisions based on their belief, whether correct or incorrect in their belief, that an employee or applicant will need a religious accommodation. If this belief motivates the company in any way in making its employment decision, the decision would be a violation of federal anti-discrimination laws. In short, there is no hiding behind lack of knowledge defenses for Title VII cases.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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