Employers are always better off hiring on the basis of ability rather than on religious or cultural factors — but after a U.S. Supreme Court decision in June, they now have an increased legal incentive to follow that advice, said Ben Allatt, an HR professional at York-based Alternative HR LLC.
In EEOC v. Abercrombie & Fitch, the Supreme Court ruled that the trendy retailer had violated Title VII of the Civil Rights Act of 1964 by deciding not to hire a Muslim applicant who wore a headscarf to an interview — a violation of the company dress code’s prohibition on caps — even though the applicant did not ask for an accommodation.
“This is a dicey proposition for employers, because this decision could pressure an employer to ask questions of employees’ religious practices, and in so doing violate Title VII,” said Solomon Krevsky of Lemoyne-based employment law firm Clark & Krevsky LLC.
In fact, Krevsky recommends employers create an interview template to ensure interviewers ask applicants a version of the following specific question: “Is there any reason you cannot comply with our policies?” If the interviewee answers that he or she can comply, the employer should be in a legal “safe harbor” under the Abercrombie decision, Krevsky said.
If an applicant states a religious concern, employers are still legally required to provide accommodations that do not create an “undue burden” and, in legal cases, that is a very fact-driven analysis, Krevsky said. A headscarf for a retail employee probably would not create an undue burden, but a beard worn by a Muslim or an Orthodox Jew in a food-processing area might.
Even in those cases, an employer may be required to find a reasonable accommodation, such as a beard cover, said Karen Young, founder and president of Lower Paxton Township-based HR Resolutions.
When one candidate is hired over another, an employer should always be ready to provide a legitimate nondiscriminatory reason for the decision, Krevsky said. Those can be objective reasons, such as differences in qualifications or experience, or subjective reasons, such as energy level or the manner in which the candidates answered an interview question.
The best way for an interviewer to protect a company during the hiring process is to document impressions of the interviewee immediately after an interview, Young said. That way, the company has better proof that its nondiscriminatory reason for not hiring an applicant was the bona fide reason.
Faith-based businesses can also sometimes receive exceptions from the law forbidding religious-based hiring decisions, especially if the job duties of the position specifically involve religious ministry, said Allatt, also president of Human Resource Professionals of Central PA.
Avoiding the problem