Company image is often important, and many companies wonder whether they can consider the company “look” when interviewing for new employees. While you can require that employees wear a neatly pressed suit to work each day (or at least recently-laundered clothes ♥), additional restrictions on employee dress may have unintended implications.
The United States Supreme Court recently addressed this issue in EEOC v. Abercrombie & Fitch. In that case, the EEOC brought suit on behalf of a practicing Muslim woman who applied for a position at an Abercrombie store. The woman wore a hijab to her interview. The Abercrombie manager assumed (without asking) that the woman wore the hijab for religious reasons. The manager decided that the hijab would conflict with the company’s “look policy” and the applicant was rejected. The woman sued, and years later the Supreme Court agreed with her – employers cannot reject applicants because the company worries about having to provide a religious accommodation.
Abercrombie lost because the applicant demonstrated that distaste for the presumed accommodation of the “look policy” was a motivating factor in the decision not to hire her—a clear no-no under Title VII (the federal anti-discrimination law). Sticking your head in the sand won’t cut it – the Supreme Court reminds us that just because accommodation is not discussed, does not mean that the employer is off the hook. The manager did not know that the applicant needed a religious accommodation – but the manager assumed that she would, and based the decision not to hire on that assumption. The fact that the manager did not get confirmation of the need for religious accommodation does not excuse Abercrombie.
The takeaway? Be cautious about “look” policies – they may do more harm than good. And train your managers to make employment decisions without resorting to stereotypes. The focus should always be on objective criteria and whether the employee (or applicant) can do the essential functions of the job. If a manager is concerned about the potential need for accommodation (religious or disability) get Human Resources involved and consider engaging in the interactive process. It may be that the applicant is not a good fit for the position – but if you make the right decision for the wrong reasons you could be facing a lawsuit.
Contact info: Meredith S. Campbell Co-Chair, Employment and Labor Group, Shulman Rogers mcampbell@shulmanrogers.com | T 301.255.0550 | F 301.230.2891
