Equal Employment Opportunity Commission (EEOC) vs. Abercrombie & Fitch Stores, Inc. reminds all employers of the “ass-u-me “rule of assumption. The interviewer assumed Samantha Elauf wore her hijab because she was a practicing Muslim. Rather than being openly curious, the interviewer informed the district manager who decided not to hire because Ms. Elauf’s headscarf would not comply with the Store’s Look Policy.

Abercrombie argued its dress code, The Look Policy which prohibited caps was neutral and did not constitute intentional discrimination. The Supreme Court explained Title VII gives religious practices “favored treatment” requiring policies to “give way to the need for an accommodation.”

Abercrombie and Fitch argued they had no actual knowledge of a need for an accommodation and therefore avoided liability. According to the Supreme Court, under the “disparate treatment” or “intentional discrimination” provision of Title VII, there is no requirement of knowledge.

In this case, the manager who interviewed Ms. Elauf admitted the decision not to hire was based on the assumption of a possible need to accommodate.

Justice Scalia wrote, the Title VII disparate treatment provision makes discrimination “because of” religion an unlawful employment practice. The provision prohibits actions to avoid the need for accommodating.

Employers need to train hiring managers to select the right candidate for the right reasons. When faced with a potential accommodation, the hiring manager needs to be curious and respectful. Human Resources and the hiring manager need to work together with the candidate to determine whether the accommodation is possible. Then view the accommodated candidate with others, without taking the accommodation into account during the selection process. This is just as hiring managers do not take any other protected class into account.

It is good practice to determine what factors will be evaluated prior to the selection process. The hiring manager or Human Resources should document the reason for selection and rejection based on this criteria. Rejected candidates should be provided the non-discriminatory reason for that decision.

Employers should ensure all employees understand their rights and responsibilities under the company’s anti-discrimination/harassment policies according to EEOC’s guidelines. Without documented training, punitive damages are often awarded.

Anyone involved in making employment decisions needs additional training. As case laws change, managers need to be informed. Managers now understand accommodation applies to religion as much as it applies to an individual with a disability.

What employers should do

• Review dress code policies and determine what is necessary to maintain.
• Review job descriptions and postings to ensure they include all essential activities. For instance, if weekends and evenings are required, discuss this information openly with candidates.
• Train hiring managers to apply Title VII. Hiring managers should be capable of engaging in the initial interactive process to determine and inform Human Resources of what accommodation may be needed.