Q. I just interviewed a job applicant who had a beard with long, curled sidelocks for a sales associate position. I did not ask him, but I suspect that he is Jewish. We have a grooming policy, which requires male sales associates to shave their beards. I think he would be a good fit for the position. Since the policy does not mention a specific religion and applies to all employees, can I hire someone else instead?
A. Assuming that your company is covered by Title VII of the Civil Rights Act of 1964 ("Title VII"), you need to be careful about how you apply your grooming policy. Religious discrimination is prohibited under Title VII, which applies to employers with 15 or more employees. New Hampshire's anti-discrimination law, which also prohibits religious discrimination, applies to an employer with 6 or more employees. The U.S. Supreme Court recently held that an employer violates Title VII if the employer refuses to hire an otherwise-qualified applicant who requires a religious accommodation in order to avoid that prospective accommodation.
An employer's motive is one of the key elements that make the employer's refusal to hire an otherwise-qualified applicant lawful or unlawful. Whether an applicant specifically mentions the need for an accommodation is irrelevant. An employer violates Title VII where the employer's decision not to hire an otherwise-qualified applicant was based on the employer's desire to avoid an accommodation that the employer suspects or knows would be needed.
Many businesses have religion-neutral policies. To quote the U.S. Supreme Court's words, "Title VII requires otherwise-neutral policies to give way to the need for an accommodation." An employer may not refuse to hire a qualified applicant because his or her religious practices may conflict with the employer's otherwise-neutral policies.
What should an employer do? An employer should make employment decisions without regard to the applicant's religious practice, confirmed or otherwise. This means that an applicant's suspected or actual religious practice cannot be a factor in employment decisions just like an applicant's race, sex, or any other protected characteristics. Instead, an employer should focus on each applicant's skillset, experience, or any other job-related qualifications. In addition, an employer must accommodate an employee's or an applicant's need for a religious accommodation unless doing so would cause an undue hardship to the company. Many factors will go into the determination of whether an accommodation would cause an undue hardship. Things like the actual cost to the employer and the number of employees a company has may be considered but are not dispositive. Therefore, an employer should consider consulting with legal counsel when trying to assess whether an accommodation is reasonable.
Published in the Manchester Union Leader, June 2015
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