If your company has not updated its dress code policy this year, it’s time to do so. On June 1, 2015, the U.S. Supreme Court made clear in EEOC v. Abercrombie & Fitch Stores, Inc., that dress codes must have flexibility to allow for exceptions based on religion when it would not result in a more than a minimal burden on the employer’s operations. The Supreme Court confirmed that an employer may not make a job applicant’s religious practice a factor in the decision not to hire her, even if that religious practice violates the company dress code. This includes a suspected religious practice in cases, such as Abercrombie, where the applicant does not specifically confirm her religion or request an accommodation based on religion.
In Abercrombie, the employer operated a line of clothing stores which sought to project a certain image and style. As a result, the company had a dress code or “Look Policy” which prohibited employees from wearing “caps”. When Samantha Elauf, a practicing Muslim, applied for a job with Abercrombie, she was wearing a headscarf, which was consistent with her understanding of her religious requirements. Elauf did not discuss religion during the interview or the reason she wore the headscarf, but the Store Manager that interviewed her was concerned that Elauf ‘s headscarf would conflict with the store’s “Look Policy” prohibiting caps. When the Store Manager asked for guidance from her District Manager, she explained that she believed Elauf wore her headscarf because of her faith. Claiming that Elauf ‘s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, the store Manager was told not to hire Elauf.
The EEOC brought suit on Elauf’s behalf claiming that its refusal to hire Elauf violated Title VII which prohibits discrimination because of religion. Abercrombie attempted to defend itself by claiming that an applicant cannot show religious discrimination unless she can show that the employer had “actual knowledge” of the applicant’s need for an accommodation.
The Supreme Court disagreed and instead held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” This is the case even if the employer has no more than an “unsubstantiated suspicion” that a religious accommodation would be needed. If the motivation for refusing to hire an applicant (or firing an employee) is to avoid making a religious-based accommodation, that motivation is clearly unlawful. The Court went on to clarify that Title VII gives favored treatment to religious practices and “requires otherwise-neutral policies to give way to the need for an accommodation.”
The take away from Abercrombie is that allowing flexibility in policies, such as dress codes or work schedules, to accommodate a religious practice is a must. Employers need to ensure that steps are taken to protect against religion-based discrimination and should seek legal advice in situations where a religious accommodation may be required. Routine review and updates of employer policies to stay current with the law is also simply sound business practice. Notably, Abercrombie changed its “Look Policy” while this case was pending.