Don’t Ask, Do Tell: NLC Joins SCOTUS Amicus Brief in Religious Accommodation Case

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religious head scarfDo you think employers should ask job applicants about the clothing they might wear for religious reasons? Or should applicants disclose their religious accommodation needs without being asked? (Getty Images)

Traditional HR policy practices hold that employers shouldn’t ask prospective employees about protected characteristics such as age, sex, race, national origin, religion, etc. However, the Equal Employment Opportunity Commission (EEOC) recently decided that if an employer thinks an employee may need a religious accommodation, then the employer must ask about his or her religion. Is the EEOC’s new view correct?

That is what the Supreme Court will decide in EEOC v. Abercrombie & Fitch Stores. Who must ask about the need for a religious accommodation, the employer or the employee/applicant? The State and Local Legal Center’s (SLLC) amicus brief argues the employee/applicant should ask.

Abercrombie & Fitch’s “Look Policy” prohibits headwear, requiring employees on the sales floor to wear clothing consistent with what Abercrombie sells in it stores. Samantha Elauf wore a head scarf to an interview at Abercrombie, but she didn’t ask for a religious accommodation. Rather than asking, her interviewer assumed Ms. Elauf was Muslim and wore the headscarf for religious reasons. Ms. Elauf was ultimately not hired because of the headscarf. The EEOC subsequently sued Abercrombie, alleging it violated Title VII by failing to accommodate Ms. Elauf’s religious beliefs. At trial, the EEOC’s expert testified that some women wear headscarves for cultural rather than religious reasons.

The Tenth Circuit ultimately held in favor of Abercrombie, finding that an applicant/employee “ordinarily must establish that he or she initially informed the employer that [he or she] adheres to a particular practice for religious reasons, and that he or she needs an accommodation for that practice” – steps which Ms. Elauf did not take.

The SLLC’s amicus brief argues that the applicant/employee should have to notify the employer of the need for a religious accommodation. After all, that had been the EEOC’s position until this particular case. A contrary position requires employers to make assumptions based on stereotypes about the physical characteristics that could indicate a person might practice a particular religion. Requiring employers to ask about an employee’s religion to avoid a failure to accommodate claim may lead to employers being liable for a disparate treatment claim. EEOC guidance says that an employer asking about a protected characteristic like religion may be used as evidence of discrimination in a disparate treatment case. And public employers don’t want to ask an applicant/employer about religion to avoid violating the First Amendment’s Establishment Clause.

Amanda Kellar and Chuck Thompson of the International Municipal Lawyers Association wrote the SLLC’s brief, which was joined by the National Conference of State Legislatures, the National League of Cities, the United States Conference of Mayors, the National Association of Counties, the International City/County Management Association, the International Municipal Lawyers Association, the International Public Management Association for Human Resources, the National Public Employer Labor Relations Association, and the National School Boards Association.

If Title VII stands for anything, it is that employers should not stereotype employees based on protected characteristics. Had Abercrombie & Fitch asked Ms. Elauf if she was a Muslim, they would have been doing just that: assuming that all women who wear headscarves do so for religious reasons.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.