The law works in mysterious ways. (Cue the U2 song.)
Some years seem to get dominated by a particular type of issue, even though the law has been around for years.
This year, it seems as though issues of religion and the workplace are taking center stage.
Yesterday, the U.S. Supreme Court heard arguments in the EEOC v. Abercrombie & Fitch case that I talked about last month. As usual, SCOTUSBlog has an excellent recap written “in plain English”. The case involves the government’s suit against the retailer for failing to hire a Muslim teenager who wore a headscarf.
But notably, the issue in the case is slightly different than how it has been portrayed in the mainstream press. The issue is “Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”
According to SCOTUSBlog, the judges seemed to be searching for a solution.
With the Justices apparently dissatisfied with both of the options presented to them by the parties, Justice Sonia Sotomayor offered a possible solution that would allow an employer like Abercrombie to inform a job applicant about its work rules without asking probing questions about the applicant’s religion: if an applicant had a beard, for example, the employer could tell the applicant that its “Look Policy” prohibits beards (thereby notifying him of a possible conflict) and simply ask him whether he can comply with that policy.
Not all Justices were amenable to this proposal: Chief Justice John Roberts complained that such an approach wouldn’t “cover anything that’s not readily apparent,” and Justice Scalia asked about the scope of such a rule – what if an applicant could comply, but it would make her uncomfortable?
I anticipate this decision will be among the last ones issued in June.
In the meantime, the EEOC yesterday released a new statement about religious accommodations in the workplace. The statement reiterates the EEOC’s interest in the area.
I talked extensively about these issues in some prior posts here and here.
If you’re still interested in the subject, stay tuned for details about a community forum program my law firm, Shipman & Goodwin is presenting on April 8, 2015 at our Hartford Office. Among the speakers: Steven Sheinberg, General Counsel of the Anti-Defamation League; Cheryl Sharp, Deputy Director of the Commission on Human Rights and Opportunities; and, Gabe Jiran of Shipman & Goodwin as well. I will be moderating.