The Supreme Court Has Ruled on Religious Discrimination and Reasonable Accommodation
By Anne-Marie L. Storey, Esq.
During our last Annual Employment Seminar, we discussed a claim that was pending before the U.S. Supreme Court which dealt with the issue of religious discrimination/failure to accommodate in violation of Title VII. At that time, we reported that the Tenth Circuit Court of Appeals had rejected an argument by the EEOC that an employer’s refusal to hire an applicant who wore a black hijab to her interview was a failure to provide a reasonable religious accommodation even though the applicant never said the reason she was wearing the hijab was for a religious reason or that she required accommodation of the employer’s dress code.
The U.S. Supreme Court has just issued its decision. In an almost unanimous holding, the Supreme Court rejected the conclusion of the Tenth Circuit. It found that the “disparate treatment” provision of Title VII prohibits an employer from refusing to hire an employee due to religious beliefs/practices and rejected the idea that the law required the employer to have actual knowledge of the need for accommodation. Instead, the Court held that “. . . an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” In short, the questions are whether the employer had sufficient information to be aware of a conflict between its policy and the applicant’s religious belief or practice, and whether the need for such accommodation was a motivating factor in the employer’s decision.
The decision does complicate an employer’s responsibility in making hiring decisions, among other things. You are now faced with balancing speculation about whether an applicant’s conduct or expression could constitute a religious belief or practice that might require accommodation with the danger that making such assumptions and asking for information based on those assumptions might very well run afoul of state or federal law. Of course, this is further complicated by the breadth of the definition of religion and the almost limitless range of what conduct might be covered. What is clear from the decision is that interviews have become that much more of a danger zone and those conducting them must be properly trained.