Some, but not all, of the discrimination statutes we have discussed have required employers, in some circumstances, to provide reasonable accommodations to their employees.
This obligation is triggered when the employer knew or had notice that the accommodation was needed. An obvious example would be the notice and knowledge the employer has when the employee is in a wheelchair.
However, when the need for an accommodation is not obvious, the employee or applicant has the obligation to notify the employer of the needed accommodation.
Consider these facts: The employer was a retail clothing store. Its employees had to comply with a dress code that required them to dress in a manner consistent with the kinds of clothing the employer sold.
A Muslim applied for a job. During the interview, the applicant wore clothing consistent with the dress policy. She also wore a black headscarf. The employer discussed the dress policy with the applicant.
During the interview, the applicant never disclosed to the employer that she was Muslim, that she wore the headscarf for religious reasons and that she would need an accommodation to address the conflict with the company’s clothing policy.
The headscarf violated the employer’s dress policy, and, for this reason, the applicant was not hired. She sued for religious discrimination.
The employer prevailed. It did not have actual notice that the applicant wore the headscarf for religious reasons; it could have been for any reason. She knew about the dress policy, but did not request an accommodation for the headscarf due to her religious beliefs.
Should the employer have assumed that the applicant was Muslim because she wore a headscarf? The Court answered “no.” An employer cannot be liable merely for its failure to guess or surmise that an applicant needs an accommodation based on a religious practice.