Thursday, February 26, 2015

Reading the #SCOTUS tea leaves: headscarves, religious accommodations, and Abercrombie

Yesterday, the Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc. (transcript here [pdf]), which will hopefully determine the circumstances under which an employer must, as a religious accommodation, grant an exception to its “Look Policy” for a hijab-wearing job applicant. More broadly, employers hold out hope for some more generalized guidance on what they should do when a corporate policy conflicts with an employee’s sincerely held religious belief.

What an interesting argument. The Justices seemed very skeptical of requiring employees to raise the issue of a reasonable accommodation in a job interview, and instead suggested that the burden should fall on an employer to bring up the issue. For example, Justice Kagan asked:

You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation…. But the alternative to that rule is a rule where Abercrombie just gets to say, “We’re going to stereotype people and prevent them from getting jobs. We’ll never have the awkward conversation because we’re just going to cut these people out.”

The criticism of the employer, however, was not limited to the Court’s left wing. Justice Alito also seems skeptical that an employer can simply ignore an obvious potential need for an accommodation simply by denying employment.

All right.  Let’s say …­­ four people show up for a job interview at Abercrombie…. So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the fourth is a Catholic nun in a habit. Now, do you think … that those people have to say, we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement….

I want to know the answer to the question whether the employee has to say, I’m wearing this for a religious reason, or whether you’re willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.

Justice Alito then offered a very practical solution:

Well, couldn’t the employer say, we have a policy no beards, or whatever, do you have any problem with that?

Reading the tea leaves, I predict another employee-side victory from this conservative-majority court. If we are assigning burdens, it seems to me that the Court thinks it makes sense to place the burden on the party with more information (the employer) to explain the job requirements to determine if a potentially obvious religious belief conflicts. Otherwise, you are requiring the employee to guess at whether an accommodation is needed at all.

Stay tuned. This will be a very interesting opinion to read when it is released later this year.