What you should know about employment discrimination laws
Early June, the Supreme Court ruled in favor of a Muslim woman from Oklahoma who sued retailer Abercrombie & Fitch for discrimination. The case and decision was to bring up interesting questions, and set a precedent, on employer’s obligations under laws covering reasonable accommodation.
Veronica Laizure is a civil rights attorney with the Oklahoma-based CAIR, a civil rights group that protects the rights of Muslims that worked with the Equal Employment Opportunity Commission to defend the applicant, Samantha Elauf, in her case against Abercrombie.
In the case before the Court, the employer was placed with the burden to prove it tried to meet the test of reasonable accommodation. Under employment discrimination lawsuits, this standard implies that employers are supposed to meet the special needs of its employees so long as it doesn’t place a burden on the company. To receive this accommodation, the employee has to make an explicit reference for accommodation to receive one. What set this case apart was that Samantha Elauf was only an applicant being interviewed for a position and was wearing a visibly religious attire, the head scarf.
The Court ruled that since Ms. Elauf was wearing a head scarf during her interview, the employer should have known that a religious accommodation was needed, and refused to hire her because of her religious beliefs. In this case, the Court found that Abercrombie had discriminated against Ms. Elauf even though she had never mentioned she needed a specific accommodation.
Attorney Veronica Laizure explains that the reasonable accommodation test used in Ms. Elauf’s case would have been different for someone already employed by Abercrombie. In that regard, the employee would have already agreed to comply with company policy. The retailer is well known for selling a seductive image as part of its culture. When asked how this would apply to an employee who converts, she stated that it is the employee’s job to specifically state that an accommodation is needed.
As Ms. Laizure also points out, the Supreme Court has been wavering on the reasonable accommodation test in favor of employers lately, moving toward a more conservative application. This makes the Abercrombie case even more notable. Cases before the Court are typically decided on a case-by-case basis. There are no blanket laws available to determine what constitutes discrimination. What the Court looks at when deciding such cases is the type of employment, what demands are expected by the job, and how religious beliefs will affect those demands. There must also have been an explicit and clear reference to the discrimination by the offended party.
To prove discrimination has occurred against anyone already employed by a company, the Court will decide a case on what attorney Ms. Laizure describes as “smoking gun factors”. These include racial slurs, how many times the discriminatory behavior was reported, any subsequent action taken by the employer, how this discrimination affected the employee’s work performance, and workplace policies.
To make a case for discrimination, Ms. Laizure advises that all incidents of discrimination be documented. This includes where the incidents occurred, whether any racial slurs were made and by whom, and any conversations with management along with the solutions provided. And she repeated several times the need to explicitly state to management and Human Resources that the employee was being discriminated against and the type of discrimination that took place. It’s important to note that employees have 300 days from the date of the last discriminatory incident to file a case against employers.
While CAIR is a religious based group that works to defend the rights of Muslims, Ms. Lazure stated that people of other faiths, or no faiths, with strong cases will not be turned away. Instead, CAIR will work to guide these groups to the appropriate agencies and nonprofits for guidance. As a civil rights group, CAIR works closely with others within the same field to protect the rights of people. These include the EEOC, ACLU, and the First Amendment Center.