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Some questions are more difficult than others

Last week, the U.S. Supreme Court wrestled with the issue of what does an employer need know about a job applicant or employee that would make them liable for a violation of the Civil Rights Act, where the employer lacked actual knowledge of the individuals religious practice.

The case involved a job applicant who wore a headscarf to her job interview.  She was not hired because the clothing store does not allow employees to wear anything on their heads. She claimed she was denied the job due to her religious beliefs, while the company claims it should not have to examine potential job applicants for their religious beliefs.

The attorneys arguing the case appeared at times during the oral argument to confuse the justices with distinctions between "knowing" and "correctly understanding" something.

While the attorney arguing for the EEOC noted that when an employer suspected religious practices could be at issue, he suggested somewhat cumbersomely, that it could "start a dialogue," surprisingly, one of the justices suggested a simpler test.

Justice Alito offered that when interviewing a candidate with a beard, the employer should indicate that they have a policy against beards and ask the candidate if they had "a problem with that."

Such a rule could be workable, as it would allow employers to highlight a "Look" or mandatory weekend policy, and this would place the employee on notice that they should ask if religious accommodations would be possible for time off or deviations from the dress code.

While these can be complex questions, sometimes even the Supreme Court can come up with a simple solution. Although, it remains to be seen if such a simple rule actually becomes the basis of the final opinion from the Court.

SCOTUSblog.com, "Looking for a workable rule: Today’s argument in Plain English," Amy Howe, February 25, 2015

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