A federal circuit court's recent ruling provides more evidence of a prevalent employment law trend that has developed in the last few decades. The trend? Candid interactive communication about an employee's rights and an employer's responsibilities.
Over the past few decades, attentive employers have seen courts favor those who communicate forthrightly concerns or issues and correspondingly disfavor those who do not. While there are anecdotal exceptions, we have seen this trend in the following:
- ADA's interactive process – the employer and the employee must engage in candid discussions about the job ramifications of medical restrictions and impairments
- minimal notice requirements under the FMLA – if an employee makes the employer aware of a need of leave or for absences that make the FMLA potentially "in play," the employer likely will be held to ask if a protected leave is needed and trigger that process with a request for a medical certification
- unlawful harassment claims – if an employee feels harassed on the basis of sex or some other protected characteristic, and if the employer has a well-publicized complaint procedure, the employee likely will be required to have raised the concern consistent with that policy in order to trigger the employer’s duty to investigate promptly and remedy effectively
The case, EEOC v. Abercrombie & Fitch Stores, Inc., involved an applicant's rejection because she wore a hijab, which conflicted with the employer's "look policy." The EEOC found that the applicant's rejection was religious discrimination and brought suit on behalf of the applicant. The EEOC took the position that an applicant's wearing of a hijab was sufficient notice to trigger the employer's religious accommodation obligations. The Tenth Circuit disagreed. Consistent with the trend identified above, the employee was not allowed to assume that the employer "should have known." Rather, the Tenth Circuit held that, in general, Title VII requires that an employee communicate the conflict between a religious practice (a "uniquely personal" issue) and a work rule. The Court observed that only the employee or applicant knows whether the practice observed by the employer is grounded in an inflexible religious practice or is being done for cultural or other reasons not grounded in religion.
So, in response, employers should remain vigilant about this trend in employment law. But what does that look like?
- Here, the employer assumed that wearing the hijab was not necessarily a religious practice. While the employer prevailed, it had lost at the lower court level, and its arguable "head in the sand" approach led to significant cost (and bad publicity) of being sued by the EEOC.
- The employer would have been wise to ask the applicant if she was aware of the company's "look policy" (which included a "no hats" provision and thereby would have forbidden the wearing of the hijab). This question likely would have triggered the very discussion that could have avoided this expense and exposure.
- But, an employer might protest, not asking the question allowed this employer to have credible deniability (and ultimately win the case) since the applicant did not mention the religious practice. Savvy employers, however, will realize that applicants will become more educated about their own rights and will raise the issue in response to rulings like this. Those same savvy employers will educate hiring managers about appropriate questions and responses when such issues arise and about the accommodation requirements when they arise.