Supreme Court Decision Forces Employers to Rethink Dress Codes and Grooming Policies
Many employers have adopted employee handbooks that include dress codes and grooming policies. Some of these policies require that employees wear uniforms, refrain from wearing hats, ripped clothing, or excessive jewelry, arrive at work cleanly shaven, or cover their tattoos. But are these policies legal? What happens when an employee asks for an exception to accommodate his or her religious beliefs? Or what about an employee who says that he cannot shave due to a medical condition? On June 1, 2015, the Supreme Court of the United States issued an important decision against national retailer Abercrombie & Fitch that creates a new rule of law and makes it substantially more difficult for employers to maintain dress codes and grooming policies.
The case involves a teenager, Samantha Elauf, who applied for a job at an Abercrombie & Fitch store in Omaha, Nebraska. Elauf is a devout Muslim who wears a headscarf for religious reasons. The interviewer at the popular teen fashion chain gave Elauf high scores during her interview and told her that she should expect a call to schedule orientation. However, Abercrombie ultimately did not hire Elauf, explaining that the headscarf she wore during the interview violated the company’s “Look Policy” that prohibits its employees from wearing caps. Neither Elauf’s headscarf nor the Look Policy was discussed during the interview.
How Did Abercrombie & Fitch Violate the Anti-Discrimination Laws?
Federal law makes it illegal to fail or refuse to hire any individual because of such individual’s religion. In this case, the Supreme Court held – for the first time – that an employee is not required to prove that her need for a religious accommodation was the sole reason she was not hired. Rather, she only needs to show that it was a “motivating factor.” In other words, an employer may violate the law even if it also has other, non-religion-related reasons for not hiring the applicant.
Abercrombie offered a two-pronged defense. First, the company argued that it was only enforcing its Look Policy, which was neutral, non-discriminatory, and applied to all applicants equally. Second, Abercrombie stated that it could not have discriminated against Elauf because it did not even know that she wore her headscarf for religious reasons.
It is the Employer’s Responsibility to Inquire into Whether Any Religious Accommodations are Needed
The Supreme Court rejected Abercrombie’s first defense. The Court clarified that, while neutrality is often the goal of anti-discrimination laws, that rule of thumb does not apply when it comes to religious practices. When it comes to religion, rather than asking whether everyone is treated the same, employers must ask whether there is anyone who needs to be treated differently for religious reasons.
The Court also rejected Abercrombie’s argument that it did not discriminate against Elauf because it did not even know that she wore the headscarf for religious purposes. The Court determined that Elauf had no obligation to disclose the religious purpose of the headscarf. Rather, Abercrombie had a duty to ask the right questions to determine whether a religious accommodation was needed. The Court reasoned that a job applicant does not know what policies exist before she is hired and trained. On the other hand, the employer is in the best position to know the policies and rules, as well as when a would-be employee might need an accommodation. For that reason, the employer should be responsible for identifying potential conflicts with internal policies.
Employers Must Choose Between “Awkward Conversations” and Illegal Discrimination
The Supreme Court’s ruling begs the question of how an employer conducting an interview will know whether an applicant might need an accommodation. Indeed, lawyers for Abercrombie pointed out that the ruling requires employers to initiate “awkward conversations” about religion during interviews. The Supreme Court was explicit in its advice to employers: If the employer has reason to suspect that an employee needs a religious accommodation to comply with a workplace policy, the employer should explain the company’s dress, grooming, and break policies, and ask whether the candidate has any concerns about those policies. The Court encouraged employers to explicitly ask if any religious accommodations are needed in these situations.
The Court’s decision serves as a strong reminder for employers of all sizes to review any policies they have concerning employee dress and grooming standards. It also serves to remind employers that they should consult with human resources or legal counsel prior to making any employment decision because of an applicant’s or employee’s protected class. In addition, they should provide appropriate training to any supervisors or managers who participate in the hiring process so they know how to deal with religious and disability-based accommodations.
If you have any questions regarding your company’s dress code or grooming policy, or whether your company may be required to make exceptions to applicants or employees, please feel free to contact us.