Anticipatory Accommodation in Light of EEOC v. Abercrombie & Fitch: What Is Hobby Lobby to Do?

The Supreme Court has rendered an interpretation of Title VII that puts employers in the position of being liable for failure to hire an applicant because of a religious practice even though the interviewee never mentioned her faith and the only hint the employer has is what the employee is wearing. Maybe this is what Congress meant, maybe not. What bothers me is how this decision is supposed to make sense in relation to Burwell v. Hobby Lobby.

In EEOC v. Abercrombie and Fitch, an applicant was interviewed who had on a headscarf. She did not state that she was a Muslim and the interviewer did not ask (employers avoid asking about someone’s religion for fear that they will be sued for discrimination if they do). But the interviewer was concerned that the headscarf would violate the chain’s “Look” policy and so asked for guidance. She was told that A & F has a neutral policy that no one can wear a “cap.” Therefore, they could not hire someone who wears a cap, for whatever reason. Thus, the applicant was not hired. So she went to the EEOC and they sued Abercrombie for violation of her right to religious accommodation.

The Supreme Court today ruled that the fact the applicant did not affirm that she was going to need a religious accommodation or disclose her faith is immaterial to an employer’s potential liability for failure to accommodate. If the employer perceives the applicant is religious and potentially in need of accommodation and even if the practice is in conflict with the company’s neutral policy, the employer needs to hire or risk being sued. According to the Court,

Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . .   because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no headwear policy as an ordinary matter.             But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

In other words, an employee who shows up wearing a baseball cap to the Abercrombie interview can be refused employment because he or she doesn’t conform to the Look, no-cap policy, but if the person is wearing the cap for religious reasons, the company needs to hire the person and needs to find accommodation even if it violates the neutral Look cap policy. (Now, there are all sorts of technicalities that I am ignoring here–for example, the debate between Justice Scalia’s majority and Justice Alito’s concurrence in the judgment–but if you were advising a company after this decision, this is the advice you should give the employer, assuming the employer is not fond of being sued.)

Justice Thomas in dissent makes the most sense out of this mess, reasoning that Abercrombie should not have been on the hook for refusing to hire someone whose practices conflict with the company’s neutral rules. Rather, employers may not refuse to hire based on discrimination. Abercrombie wasn’t acting out of discriminatory motives (as all Justices seem to be saying in some way), and, therefore, the failure to hire was not a violation. But he garnered only one vote, his own, for this view. Congress would do well to read Thomas’s opinion with care if it intends to re-inject some common sense into the Title VII universe.

In any event, for now, Abercrombie lost. This decision creates a new requirement.   Now employers must engage in Anticipatory Accommodation. If they see something that triggers the potential need for religious accommodation, they need to hire the person and find a way to accommodate him or her—even if the person is not a good fit for the job.   (On a side note: what happened to hiring the best qualified for the job at hand?)

My question is how this decision is supposed to apply to the likes of Hobby Lobby, which is every bit as obligated to abide by Title VII as is Abercrombie. In Burwell v. Hobby Lobby, Hobby Lobby won the right under the Religious Freedom Restoration Act (“RFRA”) to exclude some four types of contraception from its benefit plan, because it (mistakenly) believes they are abortifacients. Hobby Lobby does not stand alone; consider, for example, this car dealership. But what happens when the following occurs:

Say an applicant arrives wearing a T-shirt with the symbol of the Satanic Temple on it (that would be Baphomet with two adoring children looking on). First, there is no question that Hobby Lobby cannot decline to hire a member of the Satanic Temple because it disapproves of the faith. Even Satanic Temple believers have rights against discrimination.

Second, does the interviewer pursue questions about the T-shirt, as in, “Does this shirt depict your religious beliefs?” If not hired, that is the straightest way to a discrimination lawsuit. So the interviewer just looks at the T-shirt and is required to assume that it may well mean accommodation for some faith will be required.

Third, does the interviewer ask, “So what religious accommodation would you need?” Again, this is a nice opening to a discrimination lawsuit.

Fourth, according to the Abercrombie decision, and Justice Alito at the oral argument, an interviewer should be able to judge a believer by his or her cover. So, the interviewer is now on notice that she is faced with an employee who may believe that medical care should be based on science. The Satanic Temple has been all over the media, so it should be no defense that the interviewer does not know if this person in particular will need religious accommodation.

So: Can Hobby Lobby refuse to hire this employee because its benefit plan discriminates against the employee’s faith?

Hobby Lobby cannot raise RFRA against the individual applicant, because RFRA is only good against the government as a defendant. So if the individual sues (without the EEOC), Hobby Lobby has just lost that defense. And it is a basic of Title VII law that employers may not discriminate based on religion and may not discriminate in benefit plans based on religion (or race or gender, etc.). Hobby Lobby’s plan, as re-crafted after the RFRA decision, does in fact discriminate against other believers by depriving them of medical care that their faith permits. There is no business reason for the discriminatory plan—it’s all based on faith.

The real problem here is that Congress and the Supreme Court have created a madhouse where a for-profit employer fully under the control of Title VII can be a religious believer with extreme rights against all federal laws, but at the same time cannot discriminate against religious employees. Yet, at the very same time, employees whose faith practices interfere with neutral company practices have a right to be hired despite that conflict, and the employer has an obligation to do that hiring based on the employee’s appearance alone and to accommodate.

Congress: surely you can do better than this.


Picture Credit:

Marci Hamilton

Marci A. Hamilton is one of the United States’ leading church/state scholars and is a Fox Family Pavilion Distinguished Scholar in Residence in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania. She is also the Academic Director and President of CHILD USA, a 501(c)(3) nonprofit dedicated to interdisciplinary evidence-based research and tracking of medical, legal, and psychological developments to prevent and deter child abuse and neglect, which she co-leads with Dr. Steven Berkowitz, University of Pennsylvania Medical School, and Dr. Paul Offit, Children’s Hospital of Philadelphia. She holds the Paul R. Verkuil Research Chair at the Benjamin N. Cardozo School of Law, Yeshiva University, through 2018.