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HR 101 from Abercrombie & Fitch

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James Irving
BKK Business Law Newsletter
January 2016

Most human resources professionals know this simple rule governing job interviews: don’t ask candidates about religion.

In EEOC v. Abercrombie & Fitch, (2015) Abercrombie’s job interviewer complied with this axiom, but ran afoul of Title VII nonetheless.

When Samantha Elauf applied for a position at Abercrombie & Fitch (“A&F”), she was wearing a headscarf or hijab. The interviewer didn’t ask about it during the interview, and Elauf, a practicing Muslim, didn’t mention it or indicate that she would need an accommodation from what A&F described as its “Look” policy. The Look policy prohibits black clothes and caps, although “cap” is not defined in the policy. Elauf’s religion was not mentioned. The interviewer dropped Elauf’s score on the appearance section of the application because of the hijab with the result that she wasn’t hired.

The Equal Employment Opportunity Commission (“EEOC”) brought suit on Elauf’s behalf, claiming that A&F had violated Title VII of the Civil Rights Act by refusing to hire Elauf because of her hijab. A&F argued (among other things) that Elauf had a duty to inform A&F that she would require an accommodation from their “Look” policy. The District Court entered judgment in favor of the EEOC. On appeal, the Tenth Circuit reversed, holding that Summary Judgment should have been granted to A&F because Elauf never sought an accommodation.

By an 8-1 margin, the U.S. Supreme Court held that an employer can be held liable for refusing to hire an applicant based on a religious observance or practice even if the employer lacked direct knowledge that an accommodation was required. Justice Scalia’s opinion noted that an applicant must only show that his or her need for an accommodation was a motivating factor in the employer’s decision not to hire. If the applicant can show that the hiring decision was based on a desire to avoid making an accommodation, then the employer has violated Title VII. Title VII does not mandate neutrality, said Scalia. It creates an affirmative duty to accommodate religious practices.

While it remains axiomatic that a job interviewer should refrain from asking any candidate about his or her religion, prudent interviewers will take this several steps further. Don’t make assumptions about a candidate’s religion; instead, focus on the requirements of the job. In inquiring whether a candidate can perform the job duties, a need for an accommodation is likely to be revealed. For example, if the job requires Saturday hours, certain applicants may request an accommodation. If a candidate asks the employer to accommodate a sincerely held religious belief, it becomes incumbent on the employer to seek an accommodation that does not impose an undue burden on the business. This often requires interactive discussion, which is permissible to achieve a workable accommodation.

In some cases, an accommodation cannot be made, but in all cases, the employer must remain open-minded and prepared to make reasonable concessions to religious conviction.