Supreme Court could legalize employment discrimination

R. Scott Oswald

Imagine you’re a warehouse manager. You need a new worker and are choosing between three finalists. All are equally qualified, and all say they can meet the job requirements. But two of them, it turns out, are pregnant.

Danielle is barely five months along, and showing only a little.

At seven months Lisa is quite visibly pregnant.

Kim, the third candidate, is not pregnant.

Although the job involves lifting and ladder-climbing, you’ve previously offered special gear for pregnant and temporarily disabled workers. Extra leave, too, if needed. It’s expensive, but not an undue hardship.

During interviews neither Danielle nor Lisa mentions being pregnant. You don’t ask. But looking at Lisa’s belly, you assume that she’s pregnant and will need accommodation. You’re in no mood for the extra cost, so you cross her off your list. Meanwhile you don’t realize Danielle is pregnant, so you offer her the job.

Have you discriminated illegally against Lisa? Probably. On these facts, you have likely violated the Pregnancy Discrimination Act of 1978.

But let’s be frank: Without more to go on, Lisa will never sue you. Managers discriminate in hiring every day, but they seldom reveal the true reasons behind their decisions. Job seekers in wheelchairs know all about this insidious bias. So do job seekers of color, job seekers with foreign accents, job seekers over 40, and others. These workers must swallow rejections from companies where they could thrive, yet are unable to call anyone to account.

Once in a while, however, an employer tips its hand. Back in 2011, for instance, a federal court found that Abercrombie & Fitch, the preppy clothing store, discriminated when it rejected a Muslim job seeker who interviewed in a headscarf, or hijab.

On Feb. 25, the U.S. Supreme Court will hear arguments on whether Abercrombie should be let off the hook. The case, EEOC v. Abercrombie & Fitch Stores, Inc., focuses on religious accommodation, but it has implications for disabled workers, too, and some pregnant women.

In a worst-case scenario, the court could deny protection to job applicants who fail to warn employers explicitly that they will need accommodation — even if the employers end up rejecting them on exactly that assumption.

Headscarf hurt chances

Abercrombie’s stores have a whiff of Leni Riefenstahl about them, and the chain has a “look policy” for its sales people. Black clothing is verboten, as is some headwear. In 2008 Heather Cooke, an Abercrombie hiring manager in Tulsa, Okla., decided she’d like to hire then-17-year-old applicant Samantha Elauf, who had worn a black headscarf to her interview.

Cooke correctly assumed that Elauf wore the scarf for religious reasons, but she never raised the issue and evidently believed that Abercrombie’s policy could bend for Elauf. When Cooke asked a higher-up to validate her understanding, however, she was ordered to downgrade her evaluation of Elauf based on the headscarf. The change made Elauf ineligible for hiring, and Cooke never called the teenager back.

For most job seekers, the story would end there — another silent rejection of someone a bit different. But one of Elauf’s friends worked with Cooke, and knew that the headscarf was the problem. Elauf contacted the U.S. Equal Employment Opportunity Commission, which sued Abercrombie on her behalf, claiming religious discrimination based on failure to accommodate. The judge agreed, and a jury awarded Elauf $20,000.

Abercrombie appealed, saying it couldn’t be blamed for failing to offer something that Elauf had never requested. A federal appeals court bought the company’s logic, and it’s this decision that the Supreme Court will evaluate later this month.

Let’s rewind our imaginary scenario and see how our job seekers fare if Abercrombie wins again.

Possible repercussions

Lisa, who is visibly pregnant, is our Samantha Elauf. You’re the employer, and you think she’ll need an accommodation — that’s why you reject her. Have you discriminated by failing to accommodate Lisa? No, says the Abercrombie appeals court: She didn’t specify her need in triplicate, so you’re not responsible for meeting it.

How about Danielle, whose pregnancy you don’t notice? At five months along, she might fret about pregnancy discrimination. According to the appeals court, the law will shield her from Lisa’s fate only if she speaks up. But if Danielle reveals her pregnancy, will you still hire her? Or will you maybe “realize” that non-pregnant Kim is a better candidate for totally non-discriminatory reasons?

In an abstract legal world, a reasonable accommodation request should make no difference to an employer’s willingness to hire a job seeker. Any other outcome is discriminatory, pretty much by definition.

But if a request should have no legal effect, why would a job seeker’s rights ever depend on it? And if the only possible effects are unlawful, why would it ever be required?

Of course, we don’t live in an abstract world. Hiring discrimination is common, and accommodation claims are already tough to prove. The Supreme Court shouldn’t make things worse by forcing job seekers into a false choice between their civil rights and a possible job offer.

Anti-discrimination laws exist to give them both.

R. Scott Oswald is managing principal of The Employment Law Group, PC.