HR Manager’s Remarks Regarding Nature of Hiring Process May Help Employee Establish Discrimination Case

Article by Monica Rose Cafaro (Posted by Martha Zackin)

A recent decision by a federal appeals court underscores the need for HR mangers and other hiring personnel to watch what they say about job openings and the company’s hiring practices.

In Kidd v. Mando American Corporation, a white female employee who worked in the accounting department of a Korean-owned company was not considered for a promotion, despite her qualifications.  Instead, a Korean male was hired.  When the employee who was not hired – Leanne Kidd – complained to an HR Manager, Ms. Kidd alleges she was told that the Company’s predominately Korean management “refused to even consider an American candidate.”   Ms. Kidd also alleges that another HR employee told her that “no matter what . . . there would never be any American management in the company, it would always be Korean management . . . .”  Ms. Kidd relied on the HR employees’ comments to support her claim that that the employer engaged in discriminatory hiring practices by hiring the Korean male candidate over her and other qualified American candidates.

Finding that the company articulated a legitimate non -discriminatory reason for the adverse employment action, the lower court dismissed Ms. Kidd’s complaint.   In so holding, the lower court refused to consider the HR employees’ comments, finding that they were not admissible as evidence to show that the company’s articulated reason for denying Ms. Kidd a promotion was a pretext for unlawful discrimination.

The Eleventh Circuit overturned the lower court’s decision after analyzing various legal standards relating to hearsay.  That legal analysis is not relevant to the point of this blog entry- rather, the key point here is that HR employees, as well as other employees involved in hiring decisions, should avoid commenting on a company’s hiring practices or disclosing certain desired characteristics of an “ideal candidate.”  Periodic training, to educate and to reinforce good hiring practices and “common sense” principles, may help to remind hiring personnel and management employees of their obligations under the law.

EEOC Hands Out New Religious Discrimination Complaint

On September 25, the EEOC issued a press release announcing CONSOL Energy and Consolidation Coal Company violated federal law when they refused to accommodate a long-time employee’s religious belief.  Apparently, the companies installed a biometric hand scanner to track employee time and attendance.  The employee in question, Beverly Butcher, believed that that there was relationship between hand-scanning technology and the Mark of the Beast,* such that submitting to handscanning technology would violate his sincerely held religious beliefs as an Evangelical Christian.

The money quote in the EEOC’s press release is this:

In religious accommodation cases, the standard is not whether company officials agree with or share the employee’s religious beliefs…Instead, the focus is on whether the employer can provide an accommodation without incurring an undue hardship.

Whether an employer believes that biometric technology is the Mark of the Beast, and thus a prelude to the End of Days, is not relevant.  All that matters under the law is whether the employer reasonably accommodates an employee’s sincerely-held religious belief if it can do so without undue hardship. Here, the companies allowed employees to submit manual time cards if their handprints could not be read with a biometric scanner.  Accordingly, the EEOC asserts, this same accommodation should have been offered to Mr. Butcher.

 

*Biblical reference to the Mark of the Beast may be found in Revelation 13:16-17.

Abercrombie & Fitch Loses Another to the EEOC

For the past few years, Abercrombie & Fitch has been fighting to uphold its “Look Policy,” described by the website Buzzfeed as “effortless sex-meets-Ivy League aesthetic.”  A&F’s Look Policy, as reported by Buzzfeed, provides that its employees must, among other things, represent A&F with “natural class” and “American style.”  The Look Policy governs hairstyle, clothing, shoes, makeup, fingernail polish, and tattoos, and prohibits facial hair, hats and other head coverings.

After A& F settled a lawsuit with the EEOC in 2004 for $50,000,000, A&F modified its practices and policies, including its Look Policy, to be more inclusive.

Nevertheless, the A&F Look Policy continued to prohibit hats and other head coverings.  As a result, A&F has continued to face lawsuits alleging that its refusal to waive the Look Policy to allow for the wearing of head scarfs as accommodation to the sincerely held religious beliefs of Muslim women violated Title VII and applicable state law.  A&F lost one such case in 2011, when a federal court in Tulsa, OK found that Abercrombie Kids subjected a 17-year-old Muslim girl to religious discrimination when it refused to hire her for a sales position because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.   Recently, a different federal court reached the same conclusion, finding that A&F had engaged in religious discrimination when it terminated a Muslim employee who refused to take off her hijab while working in the store.

The facts of EEOC v. Abercrombie & Fitch were not disputed.  In short, an A&F employee, Umme-Hani Khan, was a devout Muslim whose sincerely held religious belief required her to wear a hijab while in public or in the presence of men who are not immediate family members.  After wearing a hijab in “store colors” for four months, Ms. Khan was disciplined after a District Manager visited the store and noticed Ms. Khan was in violation of the Company’s Look Policy.  A&F asked Ms. Khan to remove her hijab while in the store; Ms. Khan refused and her employment was terminated.

A&F tried to defend against the EEOC and Ms. Khan’s claim of religious discrimination by arguing that it could not reasonably accommodate Ms. Khan without undue hardship.  More specifically, A&F argued that compliance with the Look Policy is critical to the Company’s success, and that deviations from the policy “detract from the in-store experience” and negatively affect its brand.  In support of its argument, A&F offered testimony from its employees, all of whom expressed their personal belief that Ms. Khan’s hijab would cause harm to the Company.  Notably, A&F failed to offer any sales reports, surveys, customer complaints, or any concrete evidence to support its undue hardship claim.

The Court rejected A&F’s argument, stating that the evidence A&F had presented was speculative.  By failing to produce more than some employees’ subjective belief that violation of the Look Policy could result in declining sales, A&F failed to raise a triable issue as to whether an undue hardship would have resulted from allowing Ms. Khan to wear her hijab.   Accordingly, the court granted summary judgment to the EEOC, and against A&F.

The EEOC is continuing to target companies that refuse to alter dress codes as accommodation for employees’ sincerely held religious beliefs.  Just last week, the EEOC issued a press release announcing that it filed suit against two companies operating a chain of KFC stores for terminating female employees, whose Pentecostal beliefs require that they wear skirts, refused to wear the KFC uniform pants.

This issue is not going away.  HR and front-line managers should know that all requests for accommodation (based on the requester’s religious beliefs or disability) must be considered, and that refusals may need to be defended.