Let's talk about Religious Accommodation...

Courtesy of the Church of the Flying Spaghetti Monster 

Courtesy of the Church of the Flying Spaghetti Monster 

In a recent announcement, the EEOC stated that religious accommodation is the #1 litigation trend of 2015.   This may have a lot to do with the Supreme Court's decision in EEOC v. Abercrombie & Fitch Stores, Inc. and the recent DMV smackdown given by Pastafarians, but it may also have to do with the changing religious atmosphere in the U.S.   As the U.S. learns to deal with Worldwide problems like the Syrian refugee crisis, we can only expect religious diversity to continue to grow which makes now a great time to review religious accommodation in the workplace. 

Employers with 15 or more employees, are forbidden from discriminating against employees and applicants on the basis of one's religious beliefs. This rule comes from the infamous federal statute called Title VII . Unlike the other protected classes in Title VII (race, color, national origin, & sex), religion also carries a requirement of accommodation.  (This should sound familiar because it is a similar requirement for "reasonable accommodation" under the ADA.)  In other words, employers must accommodate employee's and applicant's religious beliefs so long as the accommodation is reasonable and does not create an undue hardship.  

This all sounds great on paper until you read the various attempts by the Supreme Court (here, here, here, here, and here)  to define "religion" and quickly realize that there actually isn't a definition at all.  Instead we have some vague guidance that "religion" is virtually anything so long as the followers have a mutual "sincere and meaningful" belief that occupies their lives.  Why is the above problematic?  Because religion can literally be anything and now it doesn't even have to be known.

Flash back to 2013-2014:  Young woman applies for the highly coveted job on the Abercrombie & Fitch sales floor spraying perfume on overly-priced clothes that look like they have already been worn 10,000 times.  Young woman shows up for interview in a headscarf that is common for Muslim women.  Interview goes great and Abercrombie interviewer gives her top marks but expresses concern to supervisor that the headscarf violates Abercrombie's "Look Policy" for employees.  Supervisor thinks the headscarf will be worn by applicant due to her religion and agrees that it violates the "Look Policy" which bans "caps."  Applicant is denied employment.  Applicant files EEOC charge.  EEOC sues Abercrombie. 

Flash forward to June 2015:  The Supreme Court says in the Abercrombie decision that an employer need not be put on notice of an employee or applicant's religion in order to discriminate on the basis of religion.  In other words, if you assume an employee or applicant is of a certain religion based on arbitrary facts you've gathered with your super-employer senses, you may still be discriminating against that employee or applicant even if that person's religion is not 100% known. This is what we in the law biz call a BFD.  

Title VII has always protected employees and applicants from an employer's discriminatory motives  but now "motive" is independent of "knowledge."  This puts employers in a peculiar position because you can't ask applicants about their religion but now you can be sued based on motivating assumptions that may or may not be true.  For Abercrombie, they argued there was no discrimination because the applicant's religion was never actually known.  However, to the court merely suspecting one's religion and then basing a hiring decision on that suspicion is enough to show discrimination.   Enter a new slippery slope. 

For the record, I am a supporter of Title VII.  It can be a huge thorn in the side of employers but it means well.  However, I also recognize that most people are not psychic and I question whether it is fair to assume someone discriminated without actual knowledge.  Furthermore, what concerns me way more than any of the above is the Abercrombie "Look Policy."  Had they not had some bogus policy dictating employee be "cap"-free, we would't be having this debate and the applicant in the Abercrombie case would be doing just fine in the dark, dark world of an Abercrombie store.  I'll save my blog post on dress codes for another day. 

PS:  Curious about the photo accommodating this blog?  Its a real thing...

The more you know.