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Tips to avoid religious discrimination liability while hiring

BridgeTower Media Newswires//November 2, 2015

Tips to avoid religious discrimination liability while hiring

BridgeTower Media Newswires//November 2, 2015

RWhat do you do if a job candidate walks into an interview wearing a hijab, yarmulke or cross?

You may have no intention of discussing religion during the interview, yet the candidate’s headwear, facial hair, jewelry or tattoos may raise questions about his or her religious beliefs. How do you avoid possible liability for religious discrimination under Title VII if you reject the applicant? The U.S. Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores Inc. in June specified that it is your motive in rejecting the applicant that matters. Here are five practical steps that will help you reduce religious discrimination risks while hiring.

Tip #1: Don’t ask about religion.

If a job candidate wears a religious article or brings up their church, synagogue, temple or mosque during an interview, fight the temptation to ask about the person’s religious beliefs. You do not want to inquire or discuss an applicant’s or employee’s religion, except to the extent necessary to discuss an accommodation (see Tip #4). Do not ask about religion on your job application, nor during an interview, even in casual conversation. The candidate will always remember your religious conversation and can use it against you to taint any employment decisions you make.

Tip #2: Don’t assume anything.

You may be tempted to surmise that a job candidate belongs to a certain religious group based on his or her appearance, name, accent, place of residence or other characteristic. Don’t assume anything. The hiring manager in the Abercrombie & Fitch case assumed that a female job applicant who wore a hijab to her interview would need a religious accommodation, namely an exception to the store’s dress code, which prohibited hats or headwear. Rejecting the candidate based on that assumption resulted in Title VII liability. Bottom line: stay neutral and don’t assume anything.

Tip #3: Focus on job requirements.

During an interview, your focus should be on the job requirements of the position under consideration. Your inquiries should be limited to asking whether the candidate can meet those requirements. For example, you may inform candidates that they will be expected to work nights and Saturdays and ask if they will be available to work during those times. Or, you can describe that the position requires workers to wear hard hats and to secure all loose clothing and hair for safety reasons and ask if the person can meet those requirements. By focusing on the job requirements, you can avoid asking if the person’s religion will affect their job in any way.

Tip #4: If an accommodation request arises, be interactive.

Under Title VII, employers have an obligation to accommodate an employee’s sincerely held religious beliefs unless doing so would impose an undue hardship on their business. If an applicant or employee raises the need for an accommodation on religious grounds, that’s when it becomes acceptable to discuss what it might take to reasonably accommodate their religious beliefs. For example, if a candidate states that he is unable to work on his religious holidays, then you may engage in an interactive discussion to discuss possible accommodations to accommodate that time off.

Tip #5: Realize that reasonable accommodations may be necessary.

Religious accommodations often center around providing the time the employee needs to partake in religious observances and making an exception to dress or grooming policies to allow for clothing, facial hair or other items worn due to religious beliefs. For example, you may need to allow a shift trade or approve unpaid time off so that an individual may attend religious services. Or, you may need to ask about dietary restrictions so that you may accommodate an employee’s religious food restrictions at a company event. Typically, these types of accommodations will not cause an undue hardship on your organization so try to stay open-minded and be prepared to accommodate religious beliefs at all stages of employment.

– By Pamela S. Howland. Howland focuses her practice on employment discrimination, retaliation and other employment-related claims with the firm of Holland & Hart, LLP in Boise, Idaho.

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