Employment laws in the United States alter the private contractual nature of employer/employee relationships. Various federal, state and local laws provide for everything from workplace health and safety requirements to minimum wages and benefits. One of these laws, Title VII of the (federal) Civil Rights Act of 1964, prohibits employment discrimination based on “race, color, religion, sex, or national origin.” Employers with 15 or more employees may not engage in either intentional discrimination or consequential disparate treatment unless the employer shows it would suffer undue hardship if forced to grant a religious exemption or accommodation. On June 1, 2015, the U.S. Supreme Court decided that Title VII prohibits a prospective employer from rejecting an applicant in order to avoid accommodating a religious practice even when the applicant has not informed the employer of the need for an accommodation.
The case, EEOC v. Abercrombie & Fitch Stores, Inc., was brought to court after a woman who wore a headscarf to a job interview was deemed unqualified because the company’s “Look Policy” prohibited employees from wearing caps. The applicant did not inform Abercrombie that her headscarf was worn for religious reasons and she did not ask for an exemption from the Look Policy. Nevertheless, Justice Scalia (in a decision joined by all but Justice Alito, who agreed with the outcome, but not the reasoning, and Justice Thomas, who dissented from both) held that Abercrombie violated the statute. A telling factor in this case was that Abercrombie “at least suspected that the scarf was worn for religious reasons.” Justice Scalia refused to speculate on the outcome of a case in which an employer had neither knowledge nor suspicion of the need for a religious accommodation.
According to the court, the language of Title VII, which is different from other anti-discrimination laws, prohibits employers from making “an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Title VII requires more than mere neutrality; it establishes a preference for religious accommodation in the workplace. The decision overturned a lower court ruling that interpreted Title VII as requiring religious adherents to request reasonable accommodation from prospective employers. In words that undoubtedly will apply to his decision regarding the Affordable Care Act, Justice Scalia wrote, “The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’s province.”
Employers still may refuse to make accommodations for religious practices, but an employer must prove the accommodation would be an undue burden. An undue burden may be proven in a variety of ways, such as anticipated safety concerns, added costs, cumbersome scheduling requirements or poor performance. Abercrombie abandoned its Look Policy before this case was decided, but the ruling will impact employment policies in companies throughout the U.S. and may empower religious observers to demand greater rights. Title VII specifically exempts religious corporations, associations, educational institutions and societies from its non-discrimination provisions so churches and religious schools will not be required to accommodate the religious practices of non-adherents. However, if seemingly secular businesses, such as Hobby Lobby craft stores, for example, are included in the religious employer exemption, the Supreme Court may reap a whirlwind of litigation that pits religious employees against religious employers.