09 Feb 2015 in Commentary, IMLA Briefs
HR 101: Don’t ask prospective employees about protected characteristics such as age, sex, race, national origin, religion, etc. No, no says the Equal Employment Opportunity (EEOC), if an employer thinks
an employee may need a religious accommodation an employer must ask about religion. Is the EEOC’s (new) view correct?
That is what the Supreme Court will decide in EEOC v. Abercrombie & Fitch Stores
. Who must ask about the need for a religious accommodation—the employer or the employee/applicant? The State and Local Legal Center’s (SLLC) amicus
brief, which IMLA wrote, argues the employee/applicant should ask.
Abercrombie & Fitch’s “Look Policy” requires sale-floor employees to wear clothing consistent with what Abercrombie sells in it stores and prohibits headwear. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. Her interviewer assumed but did not ask if she were Muslim and wore the headscarf for religious reasons. Ms. Elauf was ultimately not hired because of the headscarf. The Equal Employment Opportunity Commission (EEOC) sued Abercrombie alleging it violated Title VII by failing to accommodate Ms. Elauf’s religious beliefs. At trial, EEOC’s expert testified that some women wear headscarves for cultural rather than religious reasons.