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Would You Hire Caitlyn Jenner?

06/08/2015 01:40 pm ET | Updated Jun 08, 2016

An applicant applies for a job at your company. She is wearing a head scarf. You have a dress code. She is a qualified candidate. However, you do not offer her the job. She sues your company, saying that your hiring practices were discriminatory. She says your dress code should accommodate the fact that her religion requires her to wear a head scarf. Your defense is that you were unaware of her need to wear the head scarf because of her religion. The case goes all the way to the U.S. Supreme Court. They
rule in favor of the applicant.

That was the outcome last week in the case of the EEOC vs. the specialty retailer Abercrombie and Fitch. The court ruled 8-1 that the company failed to accommodate an applicant's religious needs when she was not hired on the basis that her hijab violated company dress policy. "An applicant need show only that his need for an accommodation was a motivating factor in the employer's decision, not that the employer had knowledge of his need," Justice Antonin Scalia wrote for the majority.

The National Federation of Independent Businesses is outraged. "The court's decision creates a dangerous slippery slope for employers," says Karen Harned, Director of the NFIB Small Business Legal Center. "Employers who ask about an applicant's religion and then don't extend a job offer for completely unrelated reasons can still be accused of discrimination and dragged into court. Now, that same employer can be sued on the basis of discrimination if they don't ask whether accommodations will be needed."

But some attorneys feel that the NFIB's concerns are misplaced.

"Abercrombie deserved to lose," says Claude Schoenberg, a Bala Cynwyd, PA attorney who routinely defends companies in the matters of employment law. "The company blatantly violated Title VII (which explicitly forbids an employer from making an employment decision based on an applicant's religious practice -- in this case, head dress -- "unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.") by failing to apply undue hardship test before making an employment decision concerning the applicant. Why Abercrombie decided not to apply the test in this case is a question best posed to its spokesperson."

Schoenberg's right. The law hasn't changed. It's been clarified. The takeaway for any business owner is this: if you want to hire good people to help you grow your business you're going to have to learn how to accommodate. You will need to ask the right questions.

Because today's employees expect to be treated differently than even a decade or two ago. The Millennial generation has grown up in a freer, more accepting environment. Muslims wear head scarves. Jews need to observe the Sabbath. A pregnant woman needs time to visit the doctor. A former men's Olympic decathlon winner is out as a trans woman. Each of these people have rights. And they require accommodation. They deserve to be able to work, regardless of their religion, their physical condition, their sexual orientation. And if you want to grow your business you are going to need the best people possible to help you succeed. Which means you're going to have to just be more flexible.

Of course, this makes the hiring process more challenging. You have to be careful when you turn down an applicant who may need special accommodation or you could be subject to a similar lawsuit, regardless of the reason why you turned that person down. But this is a challenge that can be met.
"I routinely advise my employer clients to subject their employment policies to an "undue hardship" analysis, whether to accommodate religious practice or a disability or other characteristic that is protected by anti-discrimination statutes." Schoenberg recommends. The "undue hardship" analysis can be difficult to apply and employers need to consider the financial and non-financial consequences of adjusting their facially neutral policies to accommodate a few applicants/employees. "But the analysis must be done and is usually accomplished without much fuss. According to Schoenberg, the courts afford management plenty of discretion in making such decisions.

Yes, it's a tougher, more complex world for employers, particularly small employers without the resources to spend for attorneys. But this is a world where, on the same day as this Supreme Court ruling, someone like Caitlyn Jenner can earn the respect of the country by appearing on the cover of Vanity Fair as a woman. These events have an enormous impact on your business. We are in a world where everyone needs to be treated equally and every small business owner must provide a workplace that is fair and accommodating. A new generation of workers expect this and smart business owners will understand, adapt and prosper in order to succeed.

A version of this column previously appeared on Inc.com.