Health care providers should be aware that whether and how to provide accommodations for the sincerely held religious beliefs and practices of employees and job applicants is a fast-developing workplace legal issue. On June 1, 2015, the Supreme Court issued its decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc (“Abercrombie”). For organizations with fifteen or more employees and therefore subject to federal anti-discrimination laws, providers and management involved in interviewing and hiring should note the guidance provided by the opinion.
In Abercrombie, the dispute arose in the context of organization dress code when a practicing Muslim female applied for a position. The assistant manager who interviewed the applicant found her to be qualified but observed that the applicant wore a headscarf. The headscarf was a concern for the assistant manager as the company had an existing “Look Policy” governing employee dress which prohibited wearing any “caps.” The term “caps” was not defined by the policy. The assistant manager sought guidance from the store manager noting that she believed the headscarf was worn by the applicant for religious reasons. The store manager concluded the headscarf violated the company Look Policy and directed that the applicant not be hired.
The EEOC brought suit on behalf of the applicant, arguing the refusal to hire violated federal protections for religious practices. The EEOC won at the trial court level, but was reversed on appeal. After reviewing the case, the Supreme Court rejected the appellate court’s rulings and like the trial court found in favor of the EEOC and Muslim applicant. The company had argued that to make a claim the employer had to have “actual knowledge” of the need for an accommodation. The Court rejected the argument, and instead ruled that the applicant need only show that the need for accommodation was a “motivating factor” in the employer’s decision. Justice Scalia summarized an employer’s obligations to avoid disparate treatment based on religion as follows:
“Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
The Abercrombie decision almost certainly applies to both employment applicants and existing employees, and has the potential to be expanded and applied to other anti-discrimination protections. In terms of immediate use, several practical points can be taken from Abercrombie. First, the current Court will give religious beliefs and practices careful scrutiny in assessing treatment of an employee or applicant by an employer. As noted by Justice Scalia, “Title VII does not demand mere neutrality with regards to religious practices…[r]ather, it gives them favored treatment.” Next, facially neutral policies may not constitute a defense for an employer’s decision. When an accommodation is required relating to an aspect of religious practice, per the Court “…it is no response…” that the subsequent action or inaction by the employer was due to an otherwise neutral policy. Finally, Abercrombie establishes that an employer does not have to have actual knowledge of the possible need for religious accommodation in order to be under an obligation to provide it. The inclusion of religious beliefs or practices as a factor in the employer’s decision is the critical factor.
Providers and management involved in hiring and employee issues will be well served to carefully assess potential religious accommodation issues to determine whether a concern exists and if so, how best to handle particular employees or employment applicants. Organizations covered by federal employment laws should be aware of potential obligations to make efforts to allow an employee or applicant to observe sincere religious practices or beliefs regardless of what is provided in organization policies.
Patrick Pearce is a member in the Seattle office of Ogden Murphy Wallace where his practice emphasizes counsel and litigation regarding employment and labor issues, and serving as an independent workplace investigator. He can be reached at 206-447-7000 or firstname.lastname@example.org