If the U.S. Supreme Court consisted of nine HR professionals, it would no doubt NOT have issued the ruling it just did about religious garb in the workplace.
But the justices are lawyers and jurists, and in the case of EEOC v. Abercrombie & Fitch Stores, they did what they did — which was to create a new set of headaches for HR and hiring managers.
What the court specifically did last week was revive a lawsuit filed by the EEOC on behalf of a young Muslim woman who was denied a job as an Abercrombie & Fitch store salesperson because of the headscarf that she wears for religious reasons. The company argued that the dress code it then had in place prohibited headwear for all employees, and did not target any religious practices.
A federal appeals court threw out the lawsuit, noting that the applicant never told the company that the headscarf, or hijab, had religious significance for her. Without such knowledge, that court said, an employer couldn’t be expected to consider an exception to its dress code as a religious accommodation.
Hunch or suspicion
But the Supreme Court rejected that reasoning. In an 8-1 decision, the court said employers must consider such accommodations even if they merely suspect, or have a hunch, that the employee’s or applicant’s mode of dress or grooming is religiously based.
According to the evidence, the interviewer conferred with a supervisor after the young woman’s job interview and the two agreed they thought she was wearing the black headscarf for religious reasons. They then decided she could not be hired because her garb violated the preppy clothing retailer’s so-called “look policy.”
The court’s opinion may be satisfying to lawyers and legal analysts. But what about employers? What do you do now with a candidate who comes to an interview in, say, a long gown that you don’t consider workplace-appropriate, or with an elaborate hairstyle that would seem to violate your grooming policy?
Do you have to guess whether what you’re seeing is merely a personal fashion statement, or rather an expression of a religious belief that is protected under federal anti-discrimination law?
Remember, of course, that you can’t directly ask applicants what religion they follow, if any. Doing so could also expose you to a religious discrimination lawsuit if a rejected applicant thinks your query betrayed a bias.
Looking for guidance
As you might expect, the court’s ruling didn’t lay out a specific course that you can follow and be sure you’re on firm legal ground.
That’s not to say, though, that the case leaves us completely in the dark about how to proceed safely with such applicants. In the oral arguments that preceded the decision, conversations between the bench and the EEOC’s government lawyer seemed to point to a dialogue about possible accommodations between interviewer and interviewee — a dialogue that the parties agreed might be “awkward.”
But better awkward than illegal, right?
You might start such a conversation by describing your dress/grooming policy and explaining its rationale. Then ask whether the applicant sees any problem with complying.
Supposing the applicant across the desk from you sports a bushy beard and long, unkempt hair. The dialogue might sound something like this:
Q. “Under our grooming code, we ask employees not to wear full beards or hair that falls below the shoulders. That’s because we’ve had hygiene and safety problems with these in the past. We do allow trimmed beards and hair shorter than shoulder-length. Would you be able to comply with this policy if you were hired?”
A. “I don’t know. You can see my beard and hair. Would they comply?”
Q. “Well, no. But tell me: Is your grooming the result of personal preference, or is there some deeper meaning?”
A. “Actually, there is. I’m a Nazarite, and we believe that growing out our hair and beards expresses devotion to God.”
It’s not complicated to figure out where to go from there.
According to the Supreme Court, it’s now possible for you to violate the religious rights of employees or job applicants, vis-a-vis dress or grooming, without even knowing you’re doing so.
So if you want to stay out of that Kafkaesque trap, consider the lessons of this case and don’t be afraid to engage in awkward, but necessary, dialogue when discussing apparent violations of your rules on workplace appearance.
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