Observance of faith should not prevent a qualified candidate from securing employment with any company! Whether it is the employer’s responsibility or the job applicant’s responsibility for raising questions or concerns about religious observances, can be a bit tricky. BLR, Catherine Moreton Gray, describes the case, the mistakes that were made, and the lessons all employer’s should learn from it.
By now we’ve all had time to read up on the Supreme Court’s religious discrimination decision in the Equal Employment Opportunity v. Abercrombie & Fitch Stores, Inc. case. The big question now—what are the lessons for employers on dress codes, and accommodating religious practices?
Understanding Title VII and Religious Accommodations
Title VII of the Civil Rights Act of 1964, as amended (Title VII), makes it is unlawful for an employer with 15 or more employees to discharge or otherwise discriminate against or harass applicants or employees on the basis of religion. In addition, Title VII requires employers to provide reasonable accommodation for an employee’s sincerely held religious beliefs or practices, unless it would cause the employer an undue hardship.
How do we define religious beliefs or practices? Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.” Beliefs are not protected under Title VII merely because they are sincerely held (e.g., many people adhere to a vegan diet for purely secular reasons).
According to the Equal Employment Opportunity Commission (EEOC), religion typically includes ultimate ideas about “life, purpose, and death.” The definition of religious practice isn’t exactly clear, but it is safe to say that wearing a headscarf in observance of the Muslim faith met the definition in Abercrombie.
Other religious practices include, but are not limited to, a Christian wearing a cross, a Sikh wearing a turban, or a Jew wearing a yarmulke, taking breaks during the work-day to pray, fasting, being home by sundown on the Jewish Sabbath or holidays, and attending religious services on certain days or at certain times.
What is a reasonable accommodation? Employers are required to reasonably accommodate the religious practices of an employee or job applicant unless accommodation would cause an “undue hardship” on the conduct of the employer’s business. Undue hardship may occur when the accommodation of a religious practice would require more than ordinary administrative costs; e.g., adjusting rest breaks to accommodate daily prayers would likely not involve an undue hardship.
Factors to be considered in determining whether an accommodation is an undue hardship include the size and nature of the business, the type and cost of the accommodation required, and notice of the requested accommodation. Employers are not required to incur more than minimal costs. Note, this is a much lower threshold than the standard for undue hardship under the Americans with Disabilities Act, as amended.
Employers are not required to accommodate an employee’s religious practices or beliefs if it would require changing a bona fide seniority system. For instance, if shift schedules are determined by a seniority system, such as one described in a union contract, the employer is not required to give a shift to an employee as an accommodation if it would require bumping an employee with seniority under the contract.
Options for reasonable accommodation include: flexible arrival and departure times, floating or optional holidays, flexible work breaks, use of lunch time in exchange for early departure, staggered work hours, and permitting an employee to make up time lost due to the observance of religious practices. Voluntary swapping of shifts may also be a reasonable accommodation.
Lessons from Abercrombie
In Abercrombie, the assistant manager assumed that the otherwise qualified applicant was wearing a headscarf during her interview because she was Muslim. After confirming with the district manager that the headscarf was not permitted under Abercrombie’s uniformly applied dress code, the assistant manager declined to make a job offer because the applicant was believed to be Muslim and would need to wear the headscarf at work. Here are some of the lessons we can learn from this case:
- Employers are prohibited from denying employment opportunities to an applicant or employee on the basis of that individual’s confirmed or suspected religious beliefs or practices.
- Employers should not ask applicants about religious beliefs during the interview process or assume, based on appearance, that an applicant has certain religious beliefs or requirements.
- Employers may explain to all applicants the requirements of a job, e.g., the work schedule, and ask if the applicants can meet those requirements.
- If an applicant or employee requests an accommodation for a religious belief or practice, the employer should engage in an interactive process to determine what accommodation is needed and the effect it will have on the employer’s business.
- Reasonable accommodations should be made if they will not create an undue hardship.
- Employers may be required to accommodate dress and grooming habits based on a religious practice or belief, unless the employer has a policy against the dress or grooming habits that is justified by a business necessity. For example, an employer is not required to accommodate headscarves or long garments in an industrial plant where loose clothing may get caught in moving machinery.