You’ve Got the Hijab!: How the Supreme Court’s Decision in EEOC v. Abercrombie & Fitch Stores, Inc. has Given Employees a Head Start in Obtaining Reasonable Accommodations for Religious Clothing

By: Dominic Delorantis

In the wake of the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores, Inc.,[1] employers are faced with new concerns when dealing with the religious practices of job applicants. In an 8-1 decision lead by the late Justice Scalia, the Court held that in order to bring a disparate treatment claim, a job applicant must only show that a motivating factor in not hiring them was their need for a religious accommodation, rather than having to show that the prospective employer actually knew that the applicant’s religious practice required an accommodation.[2] What this means for employers looking to hire new employees is that if the employer suspects, or has reason to believe, that an applicant may require an accommodation, they will now need to consider whether an inquiry should be made.[3] This inquiry process, however, may be the cause of many headaches for potential employers.

Moving forward, a potential employer must be cautious when confronting an applicant’s religion during the interview process, both in deciding whether to make an inquiry into the applicant’s religion, and how to handle the procedure that would follow such an inquiry. If the employer suspects during the interview process that an applicant’s religious practices may come in conflict with one of their company policies, the employer must make the applicant aware of the policy and—without referencing their religion—ask if the applicant would be able to comply with the policy.[4] If at this point the applicant does not request a reasonable accommodation or confirms that the policy would not cause an issue or conflict, the conversion does not need to proceed any further.[5] If, however, the applicant alludes to the need for an accommodation, then the employer should engage in an interactive dialogue with the candidate about requesting an accommodation and the employer’s ability to facilitate this request.[6] With these new procedures set in place, it has become harder for employers to essentially bury their head in the sand when it comes to addressing whether an applicant may require a religious accommodation, especially with companies that have image-based policies.[7]

This victory for job applicants adds to the growing global trend, in both the United States and abroad, of allowing reasonable accommodations to be made for religious clothing.[8] In the United States, the federal government has relaxed their dress code by allowing service members to wear turbans, beards, yarmulkes, head scarfs, and other religious clothing as long as they do not interfere with good order and discipline.[9] Although permission must be given on an individual, case-by-case basis by the military for a religious accommodation, it is the first step the Department of Defense has taken to encourage widespread religious acceptance throughout the organization.[10] In Canada and London, police uniforms sporting built-in headscarves were approved for use by Muslim employees in an effort to accommodate their religious needs.[11]

Coupling these advances with the Supreme Court’s decision on this matter has given employees much headway in terms of securing their religious rights in the workplace and has made it so that companies can no longer hide behind a veil when it comes to making reasonable accommodations for religious clothing.

[1] E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).

[2] Id. at 2033.

[3] Lauri Damrell & Anne Shaver, EEOC v. Abercrombie & Fitch Stores, Inc., Am. B. Ass’n, http://www.americanbar.org/content/newsletter/groups/labor_law/ll_hottopics/hot2015/jun2015ht.html (last visited Mar. 3, 2016).

[4] Id.

[5] Id.

[6] Id.

[7] See Ed Silverstein, Companies need to learn from EEOC v. Abercrombie & Fitch decision, Inside Counsel (June 5, 2015), http://www.insidecounsel.com/2015/06/05/companies-need-to-learn-from-eeoc-v-abercrombie-f?slreturn=1457554090.

[8] See e.g. David Alexander, Pentagon Relaxes Rules On Religious Clothing And Appearance In Military Uniforms Allowing Turbans, Head Scarves And Yarmulkes, Reuters (Jan. 23, 2014, 9:08 AM), http://www.huffingtonpost.com/2014/01/23/pentagon-religious-clothing_n_4651050.html; The Huffington Post Alberta, Hijab Uniform for Edmonton Police Approved, Huffington Post (Dec. 7, 2013 3:04 PM), http://www.huffingtonpost.ca/2013/12/07/hijab-uniform-edmonton-police_n_4404742.html; Cindi John, Police hope for Muslim head start, BBC (Apr. 24, 2001, 2:25 GMT), http://news.bbc.co.uk/2/hi/uk/1294417.stm.

[9] See Alexander, supra note 8.

[10] Id.

[11] See The Huffington Post Alberta, Hijab Uniform for Edmonton Police Approved, Huffington Post (Dec. 7, 2013 3:04 PM), http://www.huffingtonpost.ca/2013/12/07/hijab-uniform-edmonton-police_n_4404742.html; Nick Hopkins, Met lets Muslim policewoman don headscarves, The Guardian (Apr. 24, 2001, 10:12 PM), http://www.theguardian.com/uk/2001/apr/25/ukcrime.religion.

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