In a much anticipated decision, the United States Supreme Court today held that Abercrombie & Fitch violated the prohibition against religious discrimination, as set forth in Title VII of the Civil Rights Act of 1964, by refusing to hire a Muslim applicant who wore a headscarf (a hijab) during a job interview. In so holding, the Court rejected Abercrombie & Fitch’s argument that an employer cannot be liable for discrimination unless it can be shown that the employer had actual knowledge of the applicant’s need for a religious accommodation. Instead, the Court stated, an employer violates Title VII if its actions are motivated by a desire to avoid accommodating a religious practice even if the employer is not certain that an accommodation will be needed. Importantly, the Court left for another day the question whether an employer may be liable under Title VII if it has neither knowledge nor suspicion that an applicant or employee may require a religious accommodation.
The EEOC recently published a question-and-answer guidance (“Guidance”) regarding religious garb and grooming in the workplace. The EEOC, through the Guidance, states that, in most instances, employers covered by Title VII must make exceptions to their usual rules or preferences to permit applicants and employees to follow their religious dress and grooming practices.
The EEOC observes that Title VII protects all aspects of “sincerely held” religious observances and religious beliefs. Under the Guidance,” religion” is defined broadly to include not only traditional, organized religions, but also religious beliefs that are new, uncommon, or only subscribed to by a small number of people. The Guidance emphasizes that an applicant or employee’s religious beliefs may be “sincerely held” even when the religious practices at issue are illogical or unreasonable to others, and even when they deviate from commonly-followed tenets of the applicant or employee’s religion. Non-observance is also protected, and discrimination based on an individual’s lack of religious beliefs is prohibited.
The EEOC, through the Guidance, takes the position that Title VII requires an employer to make an exception to its policies and practices (including its dress and grooming policies and practices) if an applicant or employee requires a religious accommodation for a “sincerely held” religious belief unless doing so would pose an undue hardship. Customer preferences or maintaining a certain “image” do not constitute an undue hardship. Employers are also reminded that Title VII bars retaliation against an employee because the employee has engaged in protected activity (which includes requesting religious accommodation), and workplace harassment based on religion (which includes asking an employee to engage in a religious practice that is contrary to his or her beliefs).
The EEOC sets forth questions and answers pertaining to, among other issues, accommodating religious dress and grooming practices of employees who have only recently adopted religious observances, accommodating religious dress and grooming practices even when doing so will purportedly harm an employer’s “image,” and providing religious accommodations to employees with long hair or unshaven facial hair. Click here to review these questions and answers as well as other topics addressed in the Guidance.
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.
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.
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