Tuesday, June 2, 2015

The Unanswered Questions from EEOC v. Abercrombie

Building off of yesterday's posts regarding EEOC v. Abercrombie (here and here), there are two extraordinarily important questions left unanswered.

I touched on this yesterday: What level of suspicion is required? Justice Scalia reportedly announced this decision from the bench by stating "this is really easy." Yeah, the case of an applicant interviewing with a hijab is really easy. Of course the employer suspected the applicant wore the headscarf for religious reasons. But what about this hypo:
Interviewer: We need someone to work Saturday shifts.
Applicant: I can't do that.
Now what? Call it a day? Inquire whether the reason the applicant can't work is for religious reasons (knowing that inquiring about religious beliefs in a job interview is generally considered a huge no-no)?

Let's assume the applicant does not get the job because he's not available on Saturdays. Fast forward to the lawsuit because - surprise! - he couldn't work Saturdays because of his religious beliefs. Here's the deposition transcript:
Attorney: Did you know the applicant couldn't work on Saturdays because of his religion.
Interviewer: No, I had no idea. 
Attorney: Did you suspect his religion precluded him from working Saturdays?
Interviewer: Ummm, no? 
Attorney: You are aware that some people can't work on Saturdays for religious reasons, right?
Interviewer: I guess so. 
Attorney: So you knew the applicant could have been one of those people right?
Interviewer: I suppose so. 
Attorney: So now you admit that you at least had some suspicion that this person needed a religious accommodation, right?
Interviewer: Well, when you put it that way . . . .
What now? Does the employer lose on summary judgment or not? Yesterday's Supreme Court opinion does not answer that question:
While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument. It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do.
In other words, of course this was easy for Scalia... he skipped the hard part of the analysis!

The other question that went unanswered: Does accommodating the applicant impose an undue hardship? This will vary from case-to-case, but it's worth noting that an employer still presumably has this defense available. And, employers have had some success in implementing "look policies." See, Cloutier v. CostCo (1st Cir.)(holding that an exception to the employer's "no facial piercing" rule would impose an undue hardship on employer where employees wore such jewelry as part of the "Church of Body Modification"). The "undue hardship" burden for religious accommodations is a pretty low bar.