Mike Delikat, head of Orrick’s Employment Law Practice, recently spoke with
The Wall Street Journal and American Public Media’s
Marketplace regarding a religious discrimination suit before the U.S. Supreme Court. The case concerns a Muslim job applicant who was not hired for a retail position at Abercrombie & Fitch because the head scarf she wore was against the company’s strict dress code. The appeals court held that because the applicant did not request religious accommodation for her head scarf, Abercrombie was not under an obligation to assume that it was a sign of her Muslim faith.
According to Mr. Delikat, “The employer is between a rock and a hard place on this.” Federal law requires businesses to “reasonably accommodate” religious practices, as well as disability and pregnancy, unless so doing would impose a substantial burden on the business, but it also requires that the employee or applicant make a specific request for accommodation. However, Mr. Delikat noted that state laws typically prohibit employers from asking about religion or disability; if the employer had asked if the Abercrombie applicant was wearing the scarf for religious reasons, that would have been an impermissible inquiry under state law.
This question of what constitutes constructive knowledge complicates the job interview process, said Mr. Delikat, adding, "If Abercrombie is to lose, it definitely puts employers in a more perilous position.”