In a landmark decision this week, the Supreme Court ruled against the retail clothing giant Abercrombie & Fitch stating they discriminated against a Muslim woman for wearing a traditional Muslim headscarf, or hijab. In the almost unanimous 8-1 decision, the Court determined that Abercrombie’s decision not to hire the woman due to her wearing a hijab violated her civil rights, as protected under Title VII of the Civil Rights Act of 1964.
Title VII requires employers to make an attempt to reasonably accommodate an employee’s religious requirements, as long as this accommodation does not create undue hardship or expense for the employer. In the Abercrombie case, Title VII also prohibits employers from failing to hire a prospective employee due to their religion, which includes “all aspects of religious observance and practice.”
Given the increasingly diverse and complex culture in which we work, employers are often faced with a multitude of questions: What are considered fair and acceptable employment practices? To what extent must an employer make religious accommodations? What is considered freedom of religious expression?
What is Included in Religious Accommodation?
As stated, religious practices are protected under the Civil Rights Act, and are enforced by the Equal Employment Opportunity Commission (EEOC). According to the EEOC, the law protects employees who belong to both traditional, organized religions, as well as individuals who hold “sincere religious, ethical, or moral beliefs.” The EEOC requires employers to accommodate these beliefs, and is reflected in all aspects of religious expression. This includes:
- Religious or traditional styles of dress (eg. hijab)
- Displaying or wearing symbols of religious belief (eg. a cross or Star of David)
- Taking time off to observe religious holidays (eg. Sabbath)
- Allowing for prayer time
- Sharing of one’s beliefs with others
The Prohibition to Discriminate
The law prohibits inappropriate employment actions based on any of the following:
- Affiliation: Harassing or discriminating against an individual due to their affiliation with a specific ethnic or religious group. For example, making fun of a Mormon employee based on their religious beliefs.
- Physical and Cultural Traits and Clothing: Harassing or discriminating because of cultural, physical, or linguistic characteristics. This can include accents or dress associated with a particular ethnicity, religion, or country of origin. For example, failing to promote a Jew for wearing a skullcap.
- Perception: Discriminating against individuals based on the perception or belief that they are a member of a particular racial, national origin, or religious group (whether that perception is true or not). For example, failing to hire a dark-skinned person because of the perception they were Muslim.
- Association: Harassing or discriminating against an employee due to their association with an organization of a particular religion or ethnicity. For example, refusing to promote an employee because he attends a Mosque.
Impact of the Abercrombie Case
Following the Supreme Court’s decision this week, employers face a serious dilemma that will require further clarification in the courts. If an employer merely suspects that an employee requires a religious accommodation, they may be required to make the accommodation, if it will not cause undue hardship on the company. On the other hand, it is illegal to directly ask an employee or applicant about their religious beliefs or customs, and as such, the employer may miss the need to accommodate the employee.
Walking this tightrope can be tricky and is fraught with potential pitfalls. If you face this situation, consulting with an attorney or Human Resources Outsourcing firm is highly recommended.