EEOC v. Abercrombie
An employer may still be liable for employment discrimination pursuant to Title VII, despite not have actual knowledge that an employee requires religious accommodation for particular religious observances or practices.
In a recent case, the defendant employer, hosting a national chain of clothing stores attempted a so-called “Look Policy” governing employees dress, which specifically included the prohibition of “caps.” Despite this, the defendant employer still implemented as part of its interviewing process, whereby employees conducting job interviews could inform human resources if a particular prospective applicant required an accommodation or deviation from the “Look Policy.” In this particular case, the defendant employer interviewed a prospective employee, a practicing Muslim, who as part of her exercise of religion, wore a headscarf, to which the employee interviewing such applicant recommended that she be hired but noted there may be some potential issues with the headscarf as it may conflict with the employer defendant’s “Look Policy,” Upon consultation with the employer’s district manager, it was determined that the prospective employee not be hired because of her headscarf.
As a result of such hiring practice and circumstances regarding the prospective employee’s headscarf, the Equal Employment Opportunity Commission (EEOC) sued the defendant employer, alleging religious discrimination and in violation of Title VII of the Civil Rights Act of 1964. The defendant employer seeking to argue that such suit was without merit attempted to argue that it was the responsibility of the prospective applicant to inform the defendant employer that she required an accommodation or deviation based on religious practices or observances, especially where the defendant employer was not aware whether or not the wearing of such headscarf was based upon such sincerely held religious belief or alternatively, whether it was simply a matter of fashion. Despite the defendant employer’s arguments, the trial court granted the EEOC summary judgement.The Appeal
In reviewing the case on appeal, the Court of Appeals for the Tenth Circuit held that the employer does not need actual notice from the prospective employment applicant that he or she requires a religious accommodation or a deviation from the employer’s particular dress code or policy based on a religious practice or observance, and more specifically the Court of Appeals held that the onus or burden was not that of the employee. Furthermore, the Court of Appeals recognized that the specific legal test in determining whether an employer has violated Title VII of the Civil Rights Act of 1964, is whether the prospective employee was able to demonstrate that a “motivating factor” in the employer’s decision not to hire was based on a need for accommodation. In this regard, the Court determined that the disparate treatment provision of Title VII does not require actual knowledge on the part of the employer but rather forbids the motivation in not hiring a prospective employee based on their religious practices, affiliations, and observances. In this case, the Court found there was overwhelming evidence that the primary motive by which the defendant employer sought not to hire the prospective employee was based upon the need to provide a religious accommodation or deviation based upon the applicant’s headscarf.
Thus, the Court found that the defendant’s simple motivation or desire in not wanting to accommodate the applicant’s religious practice of wearing a headscarf was a sufficient basis by which the Court could aptly determine that there was a violation of Title VII of the Civil Rights Act of 1964. In addressing the employer defendant’s argument that the onus to advise of the need for such accommodation rested with the employee application, the Court of Appeals attempted to make clear that the need for accommodation based on religious practices and observances, does not require a neutral response or place the onus on the prospective employee, but rather that the employer maintains an actual active duty to make religious accommodations pursuant to Title VII of the Civil Rights Act of 1964.
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