In 2008, the U.S. Equal Opportunity Employment Commission filed a lawsuit on behalf of Samantha Elauf against Abercrombie and Fitch Stores, Inc. Elauf claimed the clothing chain denied her employment solely based on the fact that she wore a headscarf, often associated with the Muslim faith, which didn't comply with Abercrombie's infamous "Looks Policy," reported The Washington Post.
The policy is an extensive doctrine outlining wardrobe guidelines for store employees in great detail. While businesses are certainly entitled to develop and distribute dress code policies, discriminating against a candidate based on religious practices violates federal regulations. On June 1, 2015, the U.S. Supreme Court reinstated Elauf's case. Previously, a lower court awarded Elauf $20,000 in compensatory damages, but the judgment was overturned by the the U.S. Court of Appeals for the 10th Circuit.
Inferred vs. suspected affiliations
While most employers and human resources professionals are well aware that discrimination against candidates purely on the basis of their religious affiliations is unacceptable, the unique aspect of EEOC v. Abercrombie is Elauf never explicitly stated she was a Muslim. The Supreme Court reinforced that Title VII of the Civil Rights Act of 1964, the country's anti-discrimination law in terms of employment, applied to the situation even though religion was never discussed during the interview.
This ruling has given some employers pause, as it presents a new set of challenges for HR and hiring managers, namely: What questions can interviewers ask candidates without crossing a line? In Elauf's case, Abercombie managers assumed her headscarf indicated her religious beliefs, yet they never asked Elauf directly if the headscarf was associated with her faith. The managers claimed the decision was based on the store's "no caps" policy.
"An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions," stated Justice Scalia.
From the employer perspective
JDSpura Business Advisor noted Abercrombie argued that without an explicit request for an accommodation by the candidate, the employer can't be certain the need exists. According to the Supreme Court, the fact that an applicant doesn't ask for an accommodation isn't a condition of liability. Justice Thomas argued the employer simply failed to alter its neutral policy on head wear, as there was no indication the applicant was a practicing Muslim. The policy is based on secular head wear, and that's how the company utilized it, according to Justice Thomas.
This particular case presents businesses with the opportunity to review anti-discrimination policies with HR professionals and discuss some of the finer points involved in the hiring process. In addition, should a business feel it is ill-equipped to deal with appropriate hiring protocol, it may want to consider hiring an HR consultant. Also, a comprehensive HRIS platform can provide HR departments with tools to increase regulation compliance and employee management.
HR should also consider the following pieces of advice in the wake of EEOC v. Abercrombie:
- Tackle the issue head on: Rather than focusing on how to work around Title VII and refrain from making accommodations for potential employees, JDSpura encourages companies to first determine if an accommodation is possible, even to a neutral policy.
- Educate HR departments: HR professionals must be well-versed in their companies' religious accommodation policies and think comprehensively about the potential accommodation needs for any and all employees. Keep in mind a candidate's race, color, national origin, religious affiliation, gender and sexual orientation are never acceptable reasons for denying a candidate employment. Should an interviewer suspect a candidate will need an accommodation, a thorough understanding of accommodation policies is necessary to asking the right questions to make an educated decision.
- Record decision-making processes: Businesses should also ensure proper tracking methods are in place for HR professionals conducting interviews and making hiring decisions. Should a candidate claim he or she was denied employment due to religious or other discrimination, HR professionals will need to provide adequate documentation that the preferred candidate was a better fit for the position.