WASHINGTON, March 1, 2015 − Employers cannot ask applicants what religion they practice. The Supreme Court recently heard arguments in just such a case, one involving a Muslim woman who did not get a job because, she says, she was practicing her religion. She wore a headscarf to the job interview.
Samantah Elauf had applied for work at an Oklahoma Abercrombie & Fitch. She was not asked her religion. The interviewer says she suspected Elauf was Muslim, but did not hire her because she was wearing the headscarf. A&F has employee “dress policies” that foster “looking like” what A&F believe their customers want to look like. Elauf filed a lawsuit claiming religious discrimination.
Justice Elena Kagan compared Elauf’s case to one where an employer makes a decision that the company will not hire Jewish people, then proceeding to be on the lookout for names that are Jewish as one way to screen applicants. “That’s gotta be against the law, right?” Kagan asked.
Some legal observers say Elauf’s case will turn on how an employer is supposed to know that a potential applicant has religious beliefs that need to be accommodated.
During the Court hearing, Justice Samuel Alito said A&F must have suspected Elauf’s headscarf was permanent. Otherwise, it would have simply assumed she would not wear it again once at work. Alito described the store’s list of rules as “mythical preppy.”
Alito agreed he sounded like he was making a joke when he described hypothetical interviews with “a Sikh man wearing a turban,” “a Hasidic man wearing a hat,” ”a Muslim woman wearing a hijab” and “a Catholic nun in a habit.” He said employers cannot “feign ignorance when people appear before them in religious clothing.”
A&F’s attorney, Shay Dvoretzky, said that employers would be acting illegally if they made assumptions. “What we want to avoid is a rule that leads employers, in order to avoid liability, to start stereotyping about whether they think, guess or suspect that somebody is doing something for religious reasons.”
Federal law, Title VII, generally requires employers to make accommodations for employees’ religious beliefs.
Justice Ruth Bader Ginsburg says that Title VII requires employers to treat people who have religious practices differently. “They don’t have to accommodate a baseball cap. They do have to accommodate a yarmulke,” she said, referring to a Jewish skullcap.
This case could result in a no-win situation. Employers cannot make assumptions about an applicant’s religion and they cannot ask about religion. Nonetheless, they are required to accommodate religious beliefs and practices starting with the application process.
Justice Sonia Sotomayor may have solved the problem. She was one of several justices who said there is an easy way to avoid stereotyping. Sotomayor said employers should tell job applicants what the rules are and then ask them “Do you have a problem with that?”
Employers understandably want information about prospective employees. But there are limits to the questions that may be asked. Questions about age, race, national origin, citizenship, gender, religion, marital status, disabilities, political affiliation, military discharge status, pregnancy status and sexual orientation are illegal.
Questions that probe job applicants in order to reveal information on such areas, without having a clear job-related basis, violate discrimination laws. If the employer asks questions that directly relate to specific job-required qualifications, such questions may be okay. The intent behind the question is the important factor.
Appropriately, directness in some cases or situations is illegal. There is, however, more than one road to Rome.
Enter the “side-step.”
Asking the “right” questions can keep an employer “legal” while allowing sought-after information to be gained.
For example: employers can ask applicants if they have ever been convicted of a crime, rather than asking them if they have been “arrested.” We are all innocent until proven guilty.
Employers can ask applicants if they can work on Saturdays and Sundays, but cannot ask what religion they practice.
Employers can ask what hours an applicant can work and what responsibilities other than work they have that might interfere with specific job requirements, such as always being on time and traveling. Asking if an applicant has children is not allowed.
Employers can ask if an applicant is legally authorized to work in the U.S. instead of asking where they are from, and they can ask what other languages an applicant reads, speaks or writes, instead of inquiring whether English is their first language. If a language other than English is a job requirement, an employer may ask the applicant how they learned that language.
Employers can ask if an applicant uses or has used illegal drugs in the past year rather than asking about his or her “drug addiction” or alcohol drinking habits.
Employers can ask if the applicant has ever been disciplined for violating company policies forbidding the use of alcohol or tobacco products.
Employers can ask about skills learned in the military, but not about whether the applicant was honorably discharged. Questions about military experience, education and training are allowed.
Asking an applicant if they have any upcoming events that would require extensive time away from work is a useful question that can result in discovering if they are in the National Guard or Reserves. An employer cannot directly ask about being a member of these organizations and it is illegal to discriminate based on such membership.
Questions about length of time working in a particular industry are allowed, but questions that specifically ask about age, or allow for the calculation of an applicant’s age are not.
Employers can ask applicants if they have worked or earned any degrees under another name in order to learn if the applicant may have been or is currently married.
Asking about work availability and long-term availability is okay and can provide insight into whether the applicant has children or plans to have children. Asking about short-term notice availability or travel on short notice is okay, whereas asking about a babysitter is not.
Employers can ask applicants what experience they have with “x” age group.
Asking the applicant if they are able to perform the specific duties of a job is allowed, while asking about disabilities is not.
Asking an applicant if he or she can perform specific job functions with or without reasonable accommodations is allowed, but asking about recent or past illnesses or physical abilities is not.
If good credit is a job requirement, an employer is allowed to run a credit check and ask the applicant to sign the appropriate forms to facilitate that process.
Based on the comments of the Justices at the Elauf hearing, it appears they are going to rule in her favor. If the ruling is in Elauf’s favor, it will signal that employers do not have to know for sure that an applicant is seeking a religious accommodation under existing anti-discrimination laws when making hiring decisions.
A quandary would thus be created for employers. If the employer is not sure, but acts on the suspicion that they need to accommodate for religious exemption, they are then acting in fact, even though they are not allowed to make assumptions.
Assuming an employer is truly interested in not discriminating, it seems the best course for employers is to side-step the direct questions and ask other questions that get to the information relevant to the applicant’s fitness for the job.
Justice Sotomayor’s idea solves the problem. Telling the applicant “here are our rules” and then asking “do you have a problem with them?” eliminates discriminatory concerns and eliminates the quandary of forcing the employer to make assumptions.
Ahh. Directness. Just without any discriminatory scent.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
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