June 10, 2015

Religious accommodations in the workplace

Posted in Employment Law by Gene Killian |

My wife, who’s an inveterate shopper (for deals!), has it in for Abercrombie & Fitch.  That’s because we have a teenaged daughter, and the former CEO of A&F once regrettably said:  “In every school there are the cool and popular kids, and then there are the not-so-cool kids. Candidly, we go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends. A lot of people don’t belong [in our clothes], and they can’t belong. Are we exclusionary? Absolutely.”  (Yes, the quote is a few years old, but what can I say? The wife holds grudges.)

Apparently A&F is “exclusionary” not only about its target demographic, but also about who’s worthy to work there as a sales associate (known at A&F as a “Model”). And while arrogance may or may not be an effective marketing strategy, it definitely can be death in a courtroom, as A&F learned in the recent Supreme Court decision in EEOC v. Abercrombie & Fitch.

Facts: 17-year-old Samantha Elauf, a practicing Muslim who had worn a headscarf since she was 13, applied for a position as a “Model” at an A&F store in Oklahoma.  Before she applied, she knew that A&F had a “Look Policy” that prohibited black clothing and that required Models to wear clothing similar to that sold at the store.  The “Look Policy” also prohibited employees from wearing “caps.” Before her interview, Elauf asked a friend who worked at the store whether she would be able to wear her headscarf on duty. The friend asked a manager, who replied that a Jewish employee had once worked at A&F with a white yarmulke, so he didn’t see a problem.

Elauf did not wear black garb to her interview, but did wear a black headscarf.  She was interviewed for the job by Heather Cooke, a 23-year-old assistant manager who assumed that Elauf was a Muslim and was wearing the scarf for religious reasons.  Cooke and Elauf did not discuss religion during the interview (in fact, Cooke followed an interview script), and Elauf did not expressly ask for an accommodation.

Initially, Cooke considered Elauf a good candidate for the job, and gave her 2 of 3 possible points in the three general categories A&F considers:  “appearance and sense of style”; “outgoing and promotes diversity” (oh, the irony); and “sophistication and aspiration.”

Given the “Look Policy” and the headscarf, though, Cooke talked Elauf’s application over with a District Manager.  The District Manager apparently decided that the scarf was a prohibited “cap,” so he directed Cooke to change the score on “appearance and sense of style” from 2 to 1, and as a result, Elauf didn’t get the job.  Elauf somehow later learned that the headscarf was the reason for the rejection, and, this being America, the next step was the filing of a grievance with the EEOC.  The case wound its way to the Supreme Court.

Writing for the majority, Justice Scalia resolved the issue as follows: “[A&F’s] primary argument is that an applicant cannot show disparate treatment without first showing that an employer has actual knowledge of the applicant’s need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” 

Scalia went on to write: “The rule for disparate treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an Orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

(One of the interesting aspects of this case is that it split the conservative justices. Justice Alito and Justice Thomas wrote separate opinions, criticizing Justice Scalia’s reasoning.  Alito, for example, wrote: “If there is no [actual] knowledge requirement, an employer could be held liable without fault.”)

While the Court’s decision is of course extremely important, I’m always interested in dissecting the fact pattern to see how the company could have avoided litigation in the first place.

First issue:  A manager telling a subordinate to change the score in a document.  Look, managers are supposed to correct errors, but telling a subordinate to change (not “correct”) data in a finalized document almost always looks bad.  (Remember what happened to the doctor in the 1982 Paul Newman movie, “The Verdict”?) Think about how your documentation system is set up. If documents are subject to correction or review (and in many instances, they probably should be) the first draft should always be called “tentative, subject to management review.”

Second issue:  Conflicting signals from management, one of them through informal channels.  Here we had one supervisor informally saying that Elauf’s headscarf wasn’t a problem, and another supervisor saying that it was. Not good.

Third issue:  Common sense. Our employment laws are not set up to encourage exclusion.  If your hiring or firing decisions are exclusionary in any way, they need to be carefully reviewed.  There may be a problem.  Fix it before it becomes an expensive problem.

  • Gene Killian