What to do? What to do? Hopefully, you are keeping up because the rules keep changing. It’s no doubt frustrating, but here we go again.

You may recall the story of Samantha Elauf, a woman who applied for but was denied a position with an Abercrombie store in Tulsa. She made a charge of religious discrimination with the EEOC. The EEOC sued Abercrombie on her behalf.

The trial court granted summary judgment holding that no trial was even necessary to determine that Abercrombie had discriminated against her based upon her religion. You see, Ms. Elauf had worn a head scarf to the job interview. In the interview, they did discuss Abercrombie’s “Look Policy” which did not permit caps. They did not discuss Ms. Elauf’s religion or why she wore the head scarf. She was not hired because of the Look Policy.

Abercrombie argued it did not know of Ms. Elauf’s religious beliefs. However, there was evidence that the interviewer communicated to HR her belief that Ms. Elauf wore the headscarf because of her faith and that HR advised the interviewer the headscarf would violate the Look Policy, regardless of why Ms. Elauf wore it.

Abercrombie appealed its loss to the Tenth Circuit Court of Appeals. The Tenth Circuit Court of Appeals reversed the trial court, holding that an employer would generally not be liable for religious discrimination unless the applicant made the employer aware of her religious practice and advised the employer of a need for an accommodation of that religious practice. In other words, because Ms. Elauf didn’t tell Abercrombie why she wore the headscarf or that she would need an accommodation, there was no religious discrimination. You can read our full article on this decision here, but don’t get too comfortable with that decision.

The EEOC was not satisfied with that outcome. It did two things. First, it issued a technical assistance publication entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities” formalizing it opinions on this issue, which you can read here. Second, it appealed to the United States Supreme Court.

Today, the United States Supreme Court handed down its decision as to whether an employer must have actual knowledge of an applicant’s or employee’s religious needs before the employer may be held liable for religious discrimination. The Court answered NO.

The Court succinctly outlined the argument and its holding:

“Abercrombie’s primary argument is that an applicant cannot show [a failure to accommodate religious practices] without first showing that an employer has ‘actual knowledge’ of the applicant’s need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

The Court explained that the law hinges on the motive of the employer – not the knowledge of the employer. The Court noted that an employee’s “request for accommodation” or “the employer’s certainty” about a religious practice may make proving illegal motive easier, but it is not required. An employee may still sue and prove her case without evidence of either.

The Court gave an example which bears repeating as Oklahoma employers grapple with this new interpretation of the law:

“For example, suppose that an employer thinks (though does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

This decision is hot off the press. You can imagine there will be much more to discuss in the months and years to come as courts and commentators digest its words.

For now, a few tips.

• Remember the law prohibits religious discrimination – you cannot hire, fire, alter terms and conditions of work because of someone’s religion. So, if you know someone’s religion or their religious practices, do not base your employment decisions on that knowledge.
• The law requires you provide a reasonable accommodation for a person’s religion and religious practices. This is the more subtle and complicated area. This can involve everything from dress, as in Ms. Elauf’s case, to time off for religious practice, to grooming issues, etc. You are not required to provide every accommodation – only reasonable accommodations. Starting with the EEOC’s technical assistance will help. You will then need to apply a reasonable analysis given your businesses specific situation. You may need to seek HR or legal guidance.
• This is a good reminder of the need for clear essential job functions. Without these, the issues can quickly become murky. If you have essential job functions, you can refer to them and have a candid conversation with the candidate / employee as to whether they can perform the essential functions, with or without a reasonable accommodation (sound familiar?) Use them as a springboard. If an employee or applicant says they cannot perform an essential function, you can then engage in the process of determining whether an accommodation needs to be provided, whether that accommodation be for a religious practice or under the Americans with Disabilities Act (which has a different standard for reasonableness).
• Bottom line. Focus on the work. Don’t speculate about a person’s characteristics, beliefs, or private life.

Kristen L. Brightmire, kbrightmire@dsda.com