U.S. Supreme Court will Answer the Question of Who Must Give Notice of an Accommodation
By Ruder Ware Alumni
April 29, 2015
Yesterday, the United States Supreme Court heard oral argument in a religious discrimination case that asks the question whether an employee/applicant needs to request an accommodation of religious beliefs in order for an employer to be required to consider an accommodation. In this case, an applicant for a position with Abercrombie Fitch Stores, Inc. appeared at the interview wearing a hijab. The Company decided not to hire this person because that attire did not comply with company dress code standards for its sales persons. The applicant never asked for an accommodation based upon her religion to allow for the wearing of the hijab but company representatives assumed this would be a requirement of her religion and would not meet the company dress code.
The question being litigated in the Supreme Court case is whether the employee has to make a request for religious accommodation in order for a company to be required to consider an accommodation as part of the working conditions for the applicant. A trial court said that the company was obligated to consider an accommodation even though the employee made no request for an accommodation. The Court of Appeals ruled differently and held that the company was not obligated to provide an accommodation to the requirements of the company dress code because no request was made by the applicant. The United States Supreme Court will likely decide in late spring whether the applicant really had to make a direct request for an accommodation if she was to be hired for the sales position with the company. The oral argument before the Court suggested that this will be a closely debated decision.
Religious discrimination cases do not happen often and mostly involve time-off to attend religious services or a requirement of certain clothing or facial hair as part of requirements of a particular religious sect. What happens far more often is a request for an accommodation due to a disability suffered by an employee or applicant. This case before the Supreme Court addresses religious discrimination but the same concepts apply in cases of disability discrimination.
The decision by the Supreme Court will give some guidance to employers as to whether they must assume a disability and an accommodation request from an employee simply because of physical characteristics or whether the request for an accommodation must come from the employee before an employer is required to consider whether or not it can make an accommodation for a disabling condition. Disability discrimination laws require an interactive process between an employer and a disabled employee but there is always a question whether that interactive process must be initiated by a request from the employee or whether the employer must engage in that interactive process when it seems obvious an employee needs assistance. Of course, disabilities relating to mental health are not obvious or easy to discern so the question of the employer’s duty to pursue a discussion about an accommodation becomes even more complex in mental health disability cases.
Employers need to watch this decision. It is hoped that we will get guidance as to whether or not an employee must initiate a request for an accommodation whether it be for religious beliefs or due to a disability. More to come on this topic.
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