On June 1, 2015, the U.S. Supreme Court ruled that an employer's dress code prohibiting all headwear is not necessarily a defense against liability under Title VII of the Civil Rights Act of 1964, in cases where the employer suspects, without confirmation from the applicant, that the applicant wears a head scarf for religious reasons. Six days later, the New York Times published "A Muslim Lawyer Refuses to Choose Between a Career and a Head Scarf" in its feature "The Working Life." Employers would do well to understand both the Court's ruling and the Times story.
The underlying facts of the Supreme Court case were largely undisputed. An applicant wearing a head scarf, known as a hijab, applied for a position with a national clothing retailer. After deciding the applicant was qualified, the assistant manager asked a superior whether the head scarf would violate the company's dress code. The assistant manager said she suspected the head scarf was a religious garment, but her superior told her not to hire the applicant, because the head scarf violated the company's blanket prohibition against headwear. The Supreme Court held that the assistant manager's mere suspicion that the head scarf was religious in nature could establish intentional discrimination under Title VII because "[a]n employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions." On that basis, the Court reinstated the applicant's previously dismissed lawsuit and remanded the case for further proceedings.
Employers have always had an obligation to reasonably accommodate an employee's or applicant's religious practice under Title VII. That duty has always included considering whether a reasonable accommodation might involve an exception to a company dress code for a religious garment. The Supreme Court's decision is noteworthy, however, because an employer's mere suspicion regarding an individual's religious practice, whether "confirmed or otherwise" by that person, may make the employer liable for discrimination. The applicant or employee need not expressly identify the practice as religious in nature to enjoy the benefit of Title VII's requirement of a reasonable accommodation.
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What can employers do to help their managers and supervisors respond appropriately in similar situations? Train them.
Managers and supervisors must understand that the company dress code – and other company policies that are religiously neutral on their face – are a part of the discussion, but not necessarily the final word if a religious practice is involved. They also need to know that an applicant or employee need not volunteer that certain clothing or other practices are religious. If the company has reason to believe the applicant or employee is engaging in a religious practice, the company must respond accordingly. It should seek to confirm that the practice is religious; if it is, then the company must determine whether the requested accommodation is reasonable. (When it comes to religious garments, absent health or safety considerations, there is a good chance the accommodation will be deemed reasonable.)
What else can employers do to help their managers and supervisors? Enhance diversity awareness.
Applicants and employees wearing hijabs and other religious garments that are unfamiliar to many are a natural and welcome by-product of the ever-increasing diversity in our workplaces. Diversity can breed discomfort when it leads to an encounter with the unfamiliar. Enlightened organizations should look to address such discomfort.
The New York Times article depicts Zahra Cheema's perspective. She is a 25-year-old lawyer who is a Muslim and wears a hijab. As a result, she has experienced her own diversity-related discomfort in college, in law school, and as a practicing lawyer. She describes being "very lonely," hearing parental concerns of "Who's going to hire you?" worrying over whether she should exclude "Muslim Law Students Association" from her resume, and wondering if Facebook pictures of her in a hijab would hinder her from getting job interviews.
No one does his/her best work when uncomfortable. For employers looking to help their managers and supervisors address such "diversity discomforts" and to better understand the "other" perspective, here's one small way to begin: have them read the Times article and other stories like it. Learning what the law requires is essential to minimizing the risk of legal liability. Understanding the person behind the religious garment or practice is the key to making diversity work for your organization, consistent with the rights and responsibilities of the organization and its personnel.
By: Douglas B. Mishkin & Nicholas M. Reiter