Sunday, October 20, 2013

Triggering the Duty of Accommodating Religion

NewimageIn the religion context, what, exactly, triggers the duty to accommodate? Two recent contrasting opinions cast light – or maybe shadows – on the issue. In Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 450-51 (7th Cir. 2013), the court held, that, even though plaintiff’s religious beliefs and practices were not as familiar as others closer to the modern American mainstream, plaintiff’s request for leave to attend his father’s funeral gave sufficient notice of the religious nature of the request by referring to a “funeral ceremony,” a “funeral rite,” and animal sacrifice and describing his participation as “compulsory,” with the spiritual consequence of his absence being his own and family members' deaths. That triggered the employer’s duty to accommodate.

In contrast, EEOC v. Abercrombie & Fitch Stores, Inc., 11-5110, 2013 WL 5434809 (10th Cir. Oct. 1, 2013) (2-1), held an employer entitled to summary judgment because an applicant “never informed it prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie's clothing policy.”  Even if the court were to adopt a broader view of “notice,” an employer need not guess or surmise from the circumstances that a particular practice is based on religion and that the plaintiff requires  an accommodation for it.

The Abercrombie opinion is detailed, complex, and sophisticated – and wrong in major respects.

The facts are pretty clear: Ms. Elauf applied for a “model” (i.e., sales) job at Abercrombie while wearing a headscarf, but was turned down because it was assumed she was Muslim and her need to wear a hijab would conflict with the store’s Look Policy.  Pretty straight religious discrimination claim, right?  Refusal to hire based on the applicant’s religion; if the Look Policy was a BFOQ, maybe no liability, but not because the employer wasn’t discriminating on the basis of religion.

If the court is to be believed, things went wrong at the outset because the EEOC framed the case not as religious discrimination per se but rather as failure to accommodate.  Posing the claim that way shifted the focus from whether Abercrombie discriminated on Elauf’s (assumed and actual) religion to whether she ever notified the store of the fact that she had a religious practice that required accommodation in the form of an exemption from the Look Policy. She didn’t, not explicitly, and the majority requires explicit notice. Case dismissed.

As a fallback position, the court also considered whether some kind of less direct notice might suffice, but, if so, the source of such notice “would need to provide the employer with sufficient information such that the employer would have actual knowledge that the conflicting practice of the particular applicants or employees is based upon their religious beliefs and that they need an accommodation for it.” In this case, the only basis for such knowledge was an Abercrombie manager’s assumption that the applicant wore the headscarf for religious reasons and would need some kind of accommodation.  That isn’t the kind of “particularized, actual knowledge” that the applicant in question “and not some hypothetical Muslim female” required an accommodation.

The net result is that the employer could refuse to hire a worker because she appeared to be Muslim and was assumed to require an accommodation (both of which were found to be true by the trial court) with no liability under Title VII, entirely absent a finding of either BFOQ or undue hardship.

 If the result can be justified, it’s only because the EEOC framed the case as a failure to accommodate claim rather than a plain vanilla discrimination one.

But looked at solely from an accommodation perspective, the Abercrombie opinion raises interesting issues. In fact, the majority turns the EEOC’s rules against itself. Looking to various EEOC guidances, the court stressed that employer should neither inquire into nor assume religious beliefs of their employees, which suggests that they should normally await requests for accommodation and, even then, conduct only the most minimal inquiry into beliefs necessary to decide whether a reasonable accommodation is possible.  

 According to the court, this is true even if an employer was “generally aware of the beliefs and observances traditionally associated with a particular religious group, and also knew that the applicant or employee displayed symbols associated with that group—or even that the applicant or employee specifically claimed to be a member of that group.”  That is because “the employer would still not know whether the conflicting practice in question actually stemmed from religious beliefs unless the particular applicant or employee informed the employer, because . . . religion is a uniquely personal and individual matter.”  At several points in the opinion, the court referred to expert testimony that “religious” practices sometimes were undertaken for “cultural” reasons, which meant that the wearing of the hijab did not necessarily reflect the applicant’s “religious” beliefs.

 Finally, the court adopts a command-and-control view of religious accommodation. Even “particularized, actual knowledge” of the religious nature of “a particular applicant or employee” is not enough to trigger the duty to accommodate:

 That is because the applicant or employee may not actually need an accommodation. In other words, an applicant or employee may not consider his or her religious practice to be inflexible; that is, he or she may not feel obliged by religion to adhere to the practice. If that is the situation, then there actually is no conflict, nor a consequent need for the employer to provide a reasonable accommodation

Abercrombie puts the ball squarely in the applicant’s court: to be entitled to an accommodation, the applicant must notify the employer directly and explicitly that she has a mandatory religious practice that conflicts with a workplace rule and so requires an accommodation. Since the applicant was never hired because she was assumed to need an accommodation, the court seems to think that the only way this action would have been actionable was if she had raised the need for an accommodation at her initial interview.  A violation of the first rule of Interviewing 101. 

One wonders if the plaintiff in Adeyeye would have satisfied such a standard when he asked for leave to attend his father’s funeral. Did the words “funeral ceremony,” or “funeral rite,” convey a religious, as opposed to a cultural compulsion?  But maybe the information that the spiritual consequence of plaintiff’s absence would be his own and family members' deaths would do so, and maybe death would be sufficiently compulsory to satisfy the court’s last requirement.

There is much else in the Abercrombie opinion that is interesting and more than a little reason to believe that the court ruled the way it did because of what it perceived as a fundamental unfairness of the EEOC’s various pronouncements, which it believed put employers in the lose/lose situation:  forbidding them from inquiring into employees’ religious beliefs while holding them responsible for accommodating those same beliefs.  But the result is extraordinarily harsh and seems to ratify discrimination against Muslims (or at least those assumed to be Muslims).   

Hearteningly, Judge Ebel issued a dissent. Although at points he seemed to be focusing on discrimination rather than accommodation, he agreed with the majority that “in the ordinary case” an employee must inform the employer of her need for an accommodation, but argued that that requirement made no sense in this setting. While Abercrombie didn’t hire the applicant in order to avoid the accommodation issue, the applicant was not even sure an accommodation would be necessary so long as any hijab she wore did not have to be black. The dissent particularly objected to the majority’s suggestion “that a job applicant must initiate a general discussion of her religious beliefs during the job interview just in case her religious beliefs and practices might conflict with some unstated policy or work rule of the employer.”

The apparent circuit split on what is necessary to trigger the duty to accommodate needs to be resolved, but one good start would be to stop viewing all religious discrimination cases through an accommodation lens.  Had this been litigated as a straightforward case of discrimination against Muslims, the outcome might well have been different – and certainly the analysis would be. In that case, the focus would be how critical the Look Policy was to Abercrombie and whether some exceptions might co-exist with it. Not that such an inquiry might not have its own complications: hijab yes, burka, no?


P.S. Shortly before the 10th Circuit's decision, Abercrombie settled two other EEOC suits raising similar issues. Given that the retailer agreed to reform its policies concerning accommodations of its Look Policy, it may be that the case is more significant for the law that it establishes than for whatever may become of Muslim applicants at the store.

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