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Dress Codes, Religion and the Workplace – More Than Meets the Eye
June 02, 2015
On its face EEOC v. Abercrombie & Fitch Stores, Inc. dealt with an employer’s refusal to hire a Muslim woman who wore a headscarf in accordance with her religion, but the Supreme Court’s decision affects many more workplace policies than dress codes. It marks a possible shift toward greater workplace protection for religious practices under Title VII of the 1964 Civil Rights Act, and it opens the door for a new accommodations dialogue.   
In Abercrombie, the Supreme Court held that an employer’s refusal to accommodate a job applicant’s religious practice (wearing a hijab) is discriminatory when the refusal to accommodate that religious practice is the motive for the employer’s decision.  While the decision dealt with a dress code, it extends to all workplace policies that might interfere with religious practices, such as scheduling, hiring and interviewing, dress codes, breaks, and holidays. Even workplace policies that appear religiously neutral, such as a “no hats” policy, may violate Title VII when they fall in conflict with an employee’s religious practices and an accommodation is not allowed. These policies should be audited to ensure there is no discriminatory impact on religious practices.
What makes Abercrombie difficult for employers is that the employee does not necessarily need to request an accommodation first. The Court describes the test as “straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” (emphasis added).  The Court gave the example of an employer thinking (but not knowing for certain) that a job applicant is an individual who refuses to work on her Sabbath (for instance, Saturday) and would need the accommodation of Saturdays off. If the employer decides not to hire the applicant because of a desire to avoid that accommodation, and the employee actually needs that accommodation, the employer violates Title VII unless the employer can show the accommodation will impose an undue hardship.
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Labor & Employment Law Jeffrey D. Patton