By Ruder Ware Alumni
June 3, 2015
The United States Supreme Court, in the recent Abercrombie & Fitch decision, has said employers must use their best guess to determine whether or not an employee (or applicant) wants or needs an accommodation for a legitimate religious belief. In this decision, the Supreme Court held that the clothing company violated the religious discrimination law when it refused to employ an individual who attended an interview wearing a hijab. The Court held that the applicant did not have to request some type of accommodation to allow her to wear the religious clothing during work but rather the employer had to guess whether the applicant was going to make that request and could not discriminate because of the potential of a need to accommodate her religious belief. What is disappointing about this case is the conclusion that the employer must make an assumption an accommodation is necessary instead of requiring the employee/applicant to make a request known.
The Court held that there was no duty to communicate a request for an accommodation in this case under the religious discrimination law. There still may be a duty to communicate a request for an accommodation under other laws such as the Americans with Disabilities Act. Here the employer must assume there is a need for an accommodation and may not make an employment decision based upon the potential that an employee will ask for an accommodation.
This case may not be so troublesome because the religious garb worn by the applicant was obvious. Other cases may be far more difficult. For example, if an employee is not able to work certain hours because of a religious belief that was unknown at the time of application for employment, that could cause an employer to hire an employee who is unable to work the regular hours required of a position.
Employers must be very careful about the hiring process. The Supreme Court has said that employers may have a duty to assume an accommodation is necessary for an applicant’s religious beliefs.
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