Sunday, March 6, 2016

Disparate Impact Claims with Religious Accommodation

The American corporate structure tends to adopt secular principles to accommodate the ever present diversity in the job market. A meritocratic hiring process that de-emphasizes personal ideology--religious or otherwise--generally works to the best interest of the employer and employee. However, the adoption of the Civil Rights Act 1964 enforced these principles--in light of historical discrimination--to ensure equal opportunity in the work force. While the main effect of the law was to mitigate racial discrimination among businesses, the guarantee of freedom from religious objections in hiring has been tested in full weight.

Most recently, the Supreme Court has decided, on appeal, a contentious battle between Samantha Elauf and potential employer, Abercrombie. Elauf’s first interaction with Abercrombie was in 2008, where she interviewed for a sales job. At first, she was reluctant to apply, as her Muslim faith required her to wear a headscarf, but her friend assured her that it wouldn’t be an issue. Her friend, who worked at Abercrombie, informed Elauf that store policy mandated that employees didn’t wear black, so as long as the headscarf wasn't black she would be fine.

Ultimately, Elauf interviewed for the job, and was denied. Her interviewer, Heather Cooke, recounted the interview positively, and praised her qualifications. Ms. Cooke approached her district manager after the interview to seek approval for the headscarf, but was told that wearing the headscarf was inconsistent with the Abercrombie’s “look policy.”    

In retail clothing, many employers institute similar policies in order to ensure a homogenous image consistent with their demographic. These look policies have the secular purpose of providing a uniform image among their facilities. However, since Elauf was wearing the headscarf for religious reasons, she claimed that she was unfairly discriminated against based solely on her religion. Abercrombie does not dispute the fact that they discriminated against Elauf based on her headscarf, however, they contest the issue that it was religious discrimination. 

Suing on behalf of Elauf, the Equal Employment Opportunity Commission brought suit based on Title VII of the Civil Rights Act of 1964. Pursuant to the statute, no employer may “‘fail or refuse to hire’ an individual because of an individual's religion unless an employer demonstrates that he is unable to reasonably accommodate a religious observance or practice "without undue hardship on the conduct of the employer's business." 

Abercrombie would be able to legally discriminate if it were able to prove that it could not reasonably accommodate Elauf without infringing upon their business practices. In the past, Abercrombie has granted such religious accommodations to employees--even some Muslim--that requested them. These exemptions were dealt with on a case to case basis, as employees brought them up. The impending legal question that surrounds the case lies with whether or not Elauf had to initiate the dialogue with her potential employer in order to gain these benefits.

During Elauf’s interview with Cooke, neither the headscarf nor any religious questions were brought up. Cook explained the look policy, which included restrictions on headgear, black clothing, makeup, and nail polish, but did not mention the headscarf specifically. This omission was an intentional one, however, as Abercrombie mandates that employers must not ask any questions regarding religion in an interview or hiring process. Essentially, corporate policy restricted Cooke from initiating the dialogue of religion in order for a religious accommodation to be made. 

Abercrombie holds that religious exemptions may be made, but that the employee must initiate the dialogue in order to qualify. If the potential employee does not engage in a dialogue, Abercrombie must assume that no religious exemption should be made, and all aspects of the candidate must be evaluated on a secular basis. Since Elauf did not reveal her religion, Abercrombie argues that they made a secular evaluation of her, and found her headscarf to be in violation of their look policy. 

Although Abercrombie store policy maintained that they should not start a dialogue, the Supreme Court ruled--8 to 1--that the effect of their inaction still constituted a violation of Elauf’s civil rights. The disparate-treatment provision of Title VII says that regardless of the employer's knowledge of the candidate, they cannot fail to hire based on a desire to not want to accommodate a religious practice. Essentially, this creates an affirmative duty to accommodate that must be met by the employer. Abercrombies decision to not initiate a dialogue about religion, when the candidate was clearly wearing a religious garment, to the court, exemplified a desire to not want to accommodate. 

Samuel Alito, with whom I agree, explained in the concurring opinion that even though the candidate must show that the employer had knowledge, they do not have to notify the employer. Abercrombies policy, and the actions of Cooke, had the clear intent of trying to avoid religious accommodation by avoiding religious dialogue. Cooke knew that the headscarf was a violation of the look policy, and also knew that she could get a religious exemption if she requested one. The fact that Abercrombie doesn’t allow that conversation to be made by the employer means that Cooke had to assume that the headscarf was non-religious. However, the fact that she went to her boss to talk about the headscarf creates the assumption that Cooke knew that it was a religious item. If Cooke knew that the headscarf was religious, even if Elauf didn’t tell her, then her refusal to start a dialogue about accommodation is a violation of the disparate-treatment provision that prevents failure to hire based on a desire not to provide religious accommodation. Though I generally disagree with disparate claims on the basis that facially neutral laws should not be subject to scrutiny if they have a discriminatory effect, the court has, in this case, decided in rightful alliance with that law as it was written.


Kaily G said...

Personally, I disagree with the courts ruling. I believe Abercrombie did not discriminate against Elauf based on her religious practices. Abercrombie & Fitch requires its customers to agree to a Look Policy that embodies the store’s style and also prohibits black clothing and caps (caps not being explicitly defined); the chain even referring to its sales staff as “models.” Regardless of informing the interviewers of a need for a clothing accommodation I believe it was in the store’s right to deny Elauf’s application. Whether people agree with Abercrombie’s branding or not there is a specific look all employees are required to submit to, no exceptions. Therefore, I believe Elauf should not have interviewed for a job which she could not fully commit to due to her religious restrictions. Another example to this case would be an applicant who cannot handle pork products and applies to work at a supermarket. Based on the individuals personal restrictions the job ultimately is not an appropriate fit and thus the individual cannot preform all the necessary requirements of that job. Indeed, it is within Elauf’s constitutional right to freely practice her religion by wearing the hijab but it is also within the store’s right to not make exceptions based on the free practices of its applicants. Thus, I don’t see this case as religious discrimination but rather a failure on the applicants part to perform the tasks required of her, making her an unfit candidate.

Rosalie said...

I think that the Abercrombie was wrong to discriminate on her based on articles of clothing she chooses to wear. Even though no religious dialogue was created during the interview, it is clear that the interviewer believed that Elauf was religious based on her appearance. Abercrombie has a history as a brand of objectification of both men and women as a sales tactic and policing their employees based on their size and race among other factors. What's difficult is that regardless of the law, Abercrombie discriminates on people based on the Western notion of what is beautiful. However, it is clear in this case this woman was denied the job simply because of what she chooses to wear for religious purposes, which is a form of discrimination. I disagree that Kaily because if the task required is to look beautiful, a hijab does not inhibit that, but defies the Western norms and social constructions of beauty. It is a shame that this sort of religious discrimination is happening so frequently, especially in service positions, where the applicants are likely fairly lower class and don't have many job options.

Hannah L. said...

I believe that Elauf was unfairly discriminated against. Although Abercrombie has a "look policy", I don't think they have the right to deny a seemingly otherwise quality candidate a job because of her religion. The hijab is part of some Muslim women's religion, and by saying that she may not wear it in order to obtain a job, Abercrombie is infringing upon her free exercise of religion. It was also stated that the company has made religious exemptions in the past, and I don't see why this case should be different. It seems that Cooke assumed Elauf's religion during the interview, and a discussion should have been had about the rule and the exceptions that could be made if she so wanted.

Maddie G said...

I agree with the court here. I understand Abercrombie's policy, and its goals, but I think that the burden of making sure Abercrombie doesn't discriminate on Elauf makes Abercrombie's policies discriminatory. Abercrombie's look policy could have granted Elauf a religious exemption, but instead employees, in accordance with the policy, chose not to bridge the topic with her and therefore not hire her, unfairly infringing on her right to freely practice her religion.

Alex Puleo said...

I agree with the court in this case. Cooke was well aware of the "look policy", and with this knowledge, still continued to interview Elauf, knowing that in the end she would not be able to obtain the position due to the fact that she must wear a hijab due to religious practices. In addition, with this knowledge, Cooke could have easily asked Elauf if the hijab was necessary for her to wear for religious purposes; instead, she avoided this topic all together.

Lauren Caldas said...

I agree with Kaily that the court did not discriminate against Elauf on the basis of religion. She interviewed for the position and did not follow the store's "look policy". Since there was no dialogue initiated by Elauf about her headwear, Cooke had to view this clothing choice as a secular choice. Although, it may have been clear that Elauf's headwear was religiously affiliated, there was no explicit dialogue to say so. Like the case said, there have been exceptions made in the past when employees bring up their concerns. Elauf was not even hired in the first place and there could have been a number of other reasons why she was not hired. Qualified applicants are denied jobs all the time. If Elauf was hired and then denied an exception to the policy when she asked for one, that would be a different case.