Employers can find it difficult to talk about religious accommodations in a job interview without crossing the line into discrimination.
The U.S. Supreme Court delved into the issue recently in a case where a job applicant who government employment regulators say was discriminated against when she wasn't hired because of religious head garb she wore in the job interview.
Samantha Elauf, a Muslim, applied for a job with Abercrombie and Fitch in 2008. During the interview, neither Elauf nor the interviewer brought up whether her black headscarf was in conflict with Abercrombies "look," or dress policy. In fact, it was.
After consulting a supervisor, the interviewer decided not to hire Elauf assuming that the headscarf was for religious purposes and would disqualify her from working at Abercrombie.
The Equal Employment Opportunity Commission took Abercrombie to court on behalf of Elauf.
In the legal battle, Abercrombie has argued that if the interviewer mentioned the headscarf, it would make the company look like it was discriminating against Muslims. In order to avoid looking discriminatory, the employer decided that it was Elaufs responsibility to mention the headscarf and not Abercrombies responsibility to ask compromising interview questions.
Abercrombie also argued that these actions line up exactly with current EEOC guidelines. But the commission's pleadings cited four court cases where lower courts ruled that employers and not employees were responsible for pursuing religious accommodation needs.
The Supreme Courts ruling is anticipated to deal with the question of who is responsible for broaching the topic of religious accommodation, the employer or the employee.
Human resources and employment consultant Christine Walters expects the Abercrombie case to be one of several that will fully address the topic of religious discrimination in the workplace, helping employees feel confident they are judged on their skills.
Nobody wants to be discriminated against, said Walters. They can rest assured that they will be assessed and evaluated based on their qualifications and not some characteristic thats not job related.
Don't avoid it
Until that ruling, however, employers will be left to their interpretations of how Title VII of the Civil Rights Act protects job applicants from religious discrimination. The law doesnt spell out whos responsible for exploring possible religious conflicts in a job interview.
Alan Reinach, who represents employees in religious liberty cases and is executive director of Church State Council, cannot use Title VIIs lack of clarity on responsibility as an excuse not to investigate possible problems.
An employer has an obligation, said Reinach. If they perceive a conflict, they have an obligation to find out if thats a deal breaker or not.
For example, if an employee notices that an applicant requests that they cannot work on Saturdays an employer just needs to explain it is company policy that all employees be available for work on Saturdays. If the employee says they cannot do that for a religious reason, then the applicant has opened the dialogue for an accommodation.
Once an employer has knowledge about a persons religion and a need for an accommodation, then they have the obligation to work with that employee and to accommodate it if they can do so without any undue hardship, said Todd R. McFarland, who wrote an amicus brief for the Abercrombie case on behalf of the Seventh-day Adventist Church.
McFarland and Reinach agree that an employer does not need to bring up religion in order to talk about religious accommodations.
Mark Fowler, director of programs for Tanenbaum, a secular institution that trains human resource departments on religious issues in the workplace, said the problem is most companies look at accommodations as something to avoid rather than something to seek out.
Tanenbaum offers eight steps for employers to better learn how to accommodate religious needs in the workplace. Some of the steps include information finding, identifying limitations and clearly communicating policies regarding religious discrimination.
In most companies, part of their employee handbook would be a statement around their company's mission for creating a workforce and a workplace that is respectful of all differences and that the company does not tolerate any kind of harassment or mistreatment of people because of their various identifiers, said Fowler.
Protecting your business
But in a job interview, Walters recommends against looking for opportunities to address religious accommodations and, instead, make sure religion is never mentioned.
For me this analysis is fairly closely aligned with the ADA, said Walters. Today with the Americans With Disabilities Act, we are prohibited from asking any disability-related questions. And the EEOC defines a disability-related question as one that is likely to elicit a disability-related response.
The Americans With Disabilities Acts website explains that any and all questions related to ones disability are prohibited and qualify as discrimination.
It (an employer) cannot make any pre-employment inquiry about a disability or the nature or severity of a disability," the website states. "An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how she/he would perform these functions.
According to Walters, its just a matter of time until someone raises the question in court of why employers must avoid all questions related to ones disabilities but encouraged to talk about religious accommodations.
And she predicts when that happens employers who even mention religion will be held to the same standard under Title VII as they would under the ADA.
Dallan Flake, a sociology professor at Brigham Young University who used to handle religious discrimination cases for different corporations in Texas, agrees companies put themselves at more risk by talking about religion in a job interview.
I dont think that we want employers making any sort of assumptions about an employees religion and the type of accommodation that an employee would need just because they happen to wear a headscarf to a job interview, said Flake. I dont think thats the job of the employer.
Flake agrees with Walters and says that since its illegal to make certain assumptions about people in interviews, it should be prohibited to make assumptions about an applicant regarding his or her religion.
According to a transcript of the EEOC v. Abercrombie and Fitch hearing, Supreme Court justices explored the roles and responsibilities of the employer and job applicant when it comes to religious accommodation.
Let's say you have someone of Middle Eastern appearance who shows up for the interview with a beard, Chief Justice John Roberts asked the EEOC's lawyer Ian Gershengorn. So you think it's better for him to sit there and start asking this applicant questions he would not ask anyone else about religion? Why are you wearing a beard? Is there some religious reason for that? It seems that your solution causes more problems.
Justice Samuel Alito asked Abercrombies lawyer, Shay Dvortezky, where he'd draw the line between the employee and the applicant's responsibilities as well.
"I want to know the answer to the question whether the employee has to say, 'I'm wearing this for a religious reason,' or whether you're willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.
If the court rules in favor of the EEOC, Flake and Walters anticipate another case in the future to answer the question of whether or not religious people are different from other protected classes.
It really is a catch-22 for them, said Flake. With this Abercrombie case, its kind of interesting because if the law prohibits you from asking questions about somebody based on stereotypical assumptions about their sex, I think to be consistent the law should also prohibit or discourage employers from asking questions about a persons religion based on stereotypical assumptions of how they dress or how they act or where theyre from.
The U.S. Supreme Court delved into the issue recently in a case where a job applicant who government employment regulators say was discriminated against when she wasn't hired because of religious head garb she wore in the job interview.
Samantha Elauf, a Muslim, applied for a job with Abercrombie and Fitch in 2008. During the interview, neither Elauf nor the interviewer brought up whether her black headscarf was in conflict with Abercrombies "look," or dress policy. In fact, it was.
After consulting a supervisor, the interviewer decided not to hire Elauf assuming that the headscarf was for religious purposes and would disqualify her from working at Abercrombie.
The Equal Employment Opportunity Commission took Abercrombie to court on behalf of Elauf.
In the legal battle, Abercrombie has argued that if the interviewer mentioned the headscarf, it would make the company look like it was discriminating against Muslims. In order to avoid looking discriminatory, the employer decided that it was Elaufs responsibility to mention the headscarf and not Abercrombies responsibility to ask compromising interview questions.
Abercrombie also argued that these actions line up exactly with current EEOC guidelines. But the commission's pleadings cited four court cases where lower courts ruled that employers and not employees were responsible for pursuing religious accommodation needs.
The Supreme Courts ruling is anticipated to deal with the question of who is responsible for broaching the topic of religious accommodation, the employer or the employee.
Human resources and employment consultant Christine Walters expects the Abercrombie case to be one of several that will fully address the topic of religious discrimination in the workplace, helping employees feel confident they are judged on their skills.
Nobody wants to be discriminated against, said Walters. They can rest assured that they will be assessed and evaluated based on their qualifications and not some characteristic thats not job related.
Don't avoid it
Until that ruling, however, employers will be left to their interpretations of how Title VII of the Civil Rights Act protects job applicants from religious discrimination. The law doesnt spell out whos responsible for exploring possible religious conflicts in a job interview.
Alan Reinach, who represents employees in religious liberty cases and is executive director of Church State Council, cannot use Title VIIs lack of clarity on responsibility as an excuse not to investigate possible problems.
An employer has an obligation, said Reinach. If they perceive a conflict, they have an obligation to find out if thats a deal breaker or not.
For example, if an employee notices that an applicant requests that they cannot work on Saturdays an employer just needs to explain it is company policy that all employees be available for work on Saturdays. If the employee says they cannot do that for a religious reason, then the applicant has opened the dialogue for an accommodation.
Once an employer has knowledge about a persons religion and a need for an accommodation, then they have the obligation to work with that employee and to accommodate it if they can do so without any undue hardship, said Todd R. McFarland, who wrote an amicus brief for the Abercrombie case on behalf of the Seventh-day Adventist Church.
McFarland and Reinach agree that an employer does not need to bring up religion in order to talk about religious accommodations.
Mark Fowler, director of programs for Tanenbaum, a secular institution that trains human resource departments on religious issues in the workplace, said the problem is most companies look at accommodations as something to avoid rather than something to seek out.
Tanenbaum offers eight steps for employers to better learn how to accommodate religious needs in the workplace. Some of the steps include information finding, identifying limitations and clearly communicating policies regarding religious discrimination.
In most companies, part of their employee handbook would be a statement around their company's mission for creating a workforce and a workplace that is respectful of all differences and that the company does not tolerate any kind of harassment or mistreatment of people because of their various identifiers, said Fowler.
Protecting your business
But in a job interview, Walters recommends against looking for opportunities to address religious accommodations and, instead, make sure religion is never mentioned.
For me this analysis is fairly closely aligned with the ADA, said Walters. Today with the Americans With Disabilities Act, we are prohibited from asking any disability-related questions. And the EEOC defines a disability-related question as one that is likely to elicit a disability-related response.
The Americans With Disabilities Acts website explains that any and all questions related to ones disability are prohibited and qualify as discrimination.
It (an employer) cannot make any pre-employment inquiry about a disability or the nature or severity of a disability," the website states. "An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how she/he would perform these functions.
According to Walters, its just a matter of time until someone raises the question in court of why employers must avoid all questions related to ones disabilities but encouraged to talk about religious accommodations.
And she predicts when that happens employers who even mention religion will be held to the same standard under Title VII as they would under the ADA.
Dallan Flake, a sociology professor at Brigham Young University who used to handle religious discrimination cases for different corporations in Texas, agrees companies put themselves at more risk by talking about religion in a job interview.
I dont think that we want employers making any sort of assumptions about an employees religion and the type of accommodation that an employee would need just because they happen to wear a headscarf to a job interview, said Flake. I dont think thats the job of the employer.
Flake agrees with Walters and says that since its illegal to make certain assumptions about people in interviews, it should be prohibited to make assumptions about an applicant regarding his or her religion.
According to a transcript of the EEOC v. Abercrombie and Fitch hearing, Supreme Court justices explored the roles and responsibilities of the employer and job applicant when it comes to religious accommodation.
Let's say you have someone of Middle Eastern appearance who shows up for the interview with a beard, Chief Justice John Roberts asked the EEOC's lawyer Ian Gershengorn. So you think it's better for him to sit there and start asking this applicant questions he would not ask anyone else about religion? Why are you wearing a beard? Is there some religious reason for that? It seems that your solution causes more problems.
Justice Samuel Alito asked Abercrombies lawyer, Shay Dvortezky, where he'd draw the line between the employee and the applicant's responsibilities as well.
"I want to know the answer to the question whether the employee has to say, 'I'm wearing this for a religious reason,' or whether you're willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.
If the court rules in favor of the EEOC, Flake and Walters anticipate another case in the future to answer the question of whether or not religious people are different from other protected classes.
It really is a catch-22 for them, said Flake. With this Abercrombie case, its kind of interesting because if the law prohibits you from asking questions about somebody based on stereotypical assumptions about their sex, I think to be consistent the law should also prohibit or discourage employers from asking questions about a persons religion based on stereotypical assumptions of how they dress or how they act or where theyre from.