Bias unveiled

Posted by Direito e Religião Observatório on 07:54
Reuters, 2015

SAMANTHA ELAUF was refused a job at Abercrombie & Fitch, a clothing retailer, in 2008. She claims this decision was motivated by religious discrimination, as she was rejected only because she arrived at the interview wearing a hijab, or Muslim headscarf. On Monday the Supreme Court ruled 8-1 in her favour. The case, Justice Antonin Scalia mused from the bench, was “really easy”.
But a closer look at the decision in Equal Employment Opportunity Commission v Abercrombie & Fitch shows that the ruling is a little more complicated than Justice Scalia let on.
Abercrombie says Ms Elauf was denied a job because her headscarf violated the company’s "cap"-banning dress code, but claims the company did not know the scarf was religiously inspired. The 10th Circuit Court agreed that the onus was on the applicant to inform Abercrombie of her need for an exemption from the company dress code. But the Supreme Court saw things differently. As Justice Scalia explained, because Title VII of the Civil Rights Act forbids employment decisions informed by religious discrimination, “an applicant need only show that his need for an accommodation was a motivating factor” in being refused a job, whether or not the company had "actual knowledge" of this need.
But how could an applicant’s “need for an accommodation” possibly serve as a “motivating factor” in an employer’s hiring decision if the employer did not know that the applicant needed an accommodation? Knowing something seems to be a prerequisite for being motivated by it. Justice Scalia’s opinion clarifies how this works:
For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision [not to hire], the employer violates Title VII.
So plaintiffs in Title VII cases need only show that their hoped-for employers had a hunch that they would need to accommodate a candidate's religious observance, and that this is what cost them the job. 
This view left Justice Alito, who concurred in the holding but for different reasons, incredulous. Employers should not have to accommodate practices they may have no idea are religiously inspired, he wrote. If we suppose that the interviewer in this case genuinely “thought Elauf was wearing the scarf for a secular reason,” the standard set by the majority would still put Abercrombie on the hook for failing to accommodate her attire. That seems unfair.
Consider, for example, a job applicant who wears a hood and a shirt featuring the phrase “May the Force Be With You” to an interview, and is summarily rejected for bad sartorial judgment. Should the company be liable for discrimination if it had no clue that the applicant’s clothing reflected a belief in Jediism? Probably not. This leads Justice Alito to the conclusion that an employer cannot be held liable for refusing to hire someone "unless the employer knows that the employee engages in the practice for a religious reason." 
Yet there are indicators that make a need for an accommodation plain, at least for mainstream religions. As Justice Alito himself noted in the oral argument in February, it would be silly if “a Sikh man wearing a turban” or “a Hasidic man wearing a hat” had to inform their interviewer, “I’m dressed this way for a religious reason”. In cases like these, and in Ms Elauf’s, the plaintiffs quite literally wear their religions on their sleeves. Any further explanation is unnecessary.
Ultimately the court's message for employers is clear: it is best to exercise caution and not reject a job applicant for what may be seen as religious reasons. Abercrombie seems to have already learned this lesson. The company has been loosening its fashion strictures for employees over the past few years, and it now permits workers to wear hijabs.
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