When Do You Mention Shabbos Observance in A Job Interview?

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Dear Jew in the City,

When during an interview/hiring process should you bring up keeping Shabbos/Jewish holiday absence questions? At the time of offer? At the initial interview? What would a good response be to the question, “Are you available nights and weekends if we need you to come in?” Wondering how people handle this.

– J

Dear J,

Your question couldn’t be more timely as the U.S. Supreme Court just heard a case a couple weeks ago directly on this topic. Unfortunately, if the case comes out the wrong way, religious job applicants will be put in an incredibly difficult position with no good options, and the door to discrimination against religious job applicants—and in particular observant Jews—could be flung wide open.

But before I get to the legal issue, I’m going to first address your questions from a practical perspective. The reality is that as an Orthodox Jew, you have some hard choices to make. If you tell your employer about Shabbos restrictions before you have an offer in hand, or if you wear a yarmulke to the interview (assuming you are a man), there’s a very real risk that the interviewer will say to himself or herself, “There are plenty of qualified applicants; why not hire someone who can work 24/7?” Even someone who doesn’t see himself as anti-Semitic or anti-Orthodox might decline to hire you for this reason. Not only that, the employer will be able to hide behind neutral excuses—“We’re looking for someone with a little more experience . . .”—and you will have no way of proving that you were the victim of religious discrimination.

On the other hand, if you don’t disclose your religious observances and restrictions up front, or remove your yarmulke for the interview (there are a range of opinions in Jewish law on this which I’m not addressing here), and especially if you don’t mention Shabbos when asked a direct question about weekend availability, and then you show up at work only to head out the door at 2 p.m. on that first winter Friday, the employer might be left with the feeling that you aren’t the most honest of people—and not without reason, I might add. That’s not exactly a recipe for success in your job.

In my own personal experience, I have interviewed for jobs both with and without a yarmulke, and I have to say that I felt much better about interviewing with the yarmulke than not, because I knew that the employer understood that hiring me came with Shabbos and holiday restrictions. I also felt that I was being upfront about what it meant to hire me, without having to raise the conversation explicitly—which is a bit awkward at an initial interview, even if the interviewer doesn’t have an issue with Shabbos observance per se. This was, for me, the right way to address the issue. Granted, I was interviewing for positions at large law firms in New York City (either as a paralegal before law school or for attorney positions), so I could be relatively sure that the interviewers knew what a yarmulke meant, and also that there would likely be less of a reflexive denial of a job offer on that account. And in fact I never felt that it was taken into consideration in any significant way in the hiring decision.

I realize that in times past it was not this way. For example, the legendary religious liberties litigator Nat Lewin—with whom I studied religious liberties and Supreme Court litigation at law school and someone I’ve worked closely with on the Zivotofsky case—wrote in a recent friend of the court brief that when he was interviewing for law jobs in the late 1950s wearing a yarmulke, he was subjected to a number of derogatory comments at interviews, and did not receive a single job offer from the leading law firms in New York City. In fact, he was the only member of the Harvard Law Review that year (Harvard Law Class of 1960) that did not get a New York City big firm offer. I appreciate beyond words the sacrifices of his generation and subsequent generations and I am in awe of the successes they have had in moving, at very least, the legal industry in New York, and I hope we can say American society more generally, in the right direction on this issue. But in industries and in places where potential employers may be less familiar and less forgiving, that specter of stealthy discrimination still looms large.

If you aren’t obviously observant at the interview, whether because you are a woman or because you are not wearing a yarmulke, you are left with the difficult decision of when and how to disclose your religious observance.

If that’s your situation, I do not believe you have an ethical obligation to affirmatively disclose your Shabbos restrictions until after you have an offer in hand, nor do I think you should have a legal obligation to do so. (More on that below—the law is, scarily, not so clear.) You should be judged on the merits of your application and qualifications, and I don’t believe your employer should reasonably expect that you would mention your observance at an initial interview. Once you raise the issue post-offer, and with the option of simply not hiring you off the table, you and the employer can (and should) have a conversation about your observance, and what you can do to make up time you might need to miss for leaving early on Fridays and for Jewish holidays. In my experience, employers are generally willing to give you the opportunity to prove yourself, and won’t hold your observance against you, if you tell them at the outset that you will make up the time, will log on Saturday night and come in Sunday if necessary, and the like. (There are a plethora of Orthodox Jews successfully working in the secular world, including individuals who have risen to the tops of their fields.) And of course, you have to follow through, because in today’s 24/7 world, most industries don’t take a hiatus for the weekends and your co-workers will be working when you are off. It’s only right and fair that you pick up some of that slack when you are back online, which will show your commitment to the team and demonstrate that you aren’t using Shabbos as an excuse to get out of work.

There are, however, two important caveats to the post-offer disclosure approach.

First, if the employer asks about weekend availability directly during the interview process, I don’t think you should hide your Shabbos restrictions. Putting aside the ethical question, it will come back to bite you later when you reveal yourself to have not been entirely truthful. In fact, an employer could decide that lying at the interview is grounds for firing you—just as if you had lied about your qualifications or background—even if the lie is related to a religious restriction.

Second, under U.S. law, while an employer generally may not decline to hire you (and may not fire you), on the basis of your religion, it can do so if there are no available reasonable accommodations for your religious practices. So, for example, if you, as a Shabbos observant Jew, were interviewing for a position as a college football broadcaster, the employer would have every right not to hire you (or to fire you after tendering an offer) because the vast majority of college football games are played on Saturdays, when you are not able to work. This is the case whether this information comes out during the interview process or later. So, if you are interviewing for a position in which the conflict between your religious restrictions and the immovable job requirements is clear, I would suggest that you raise the issue during the interview process in order to determine whether there is a reasonable accommodation that can be made. If you don’t, it will look like you were intentionally hiding the ball.

That brings us to the pending Supreme Court case, EEOC v. Abercrombie & Fitch Stores, Inc. In that case, a woman named Samantha Elauf wore a hijab (a hair-covering scarf) to her job interview at an Abercrombie & Fitch store in Tulsa, Oklahoma. The interviewer understood that she was Muslim and was wearing the hijab for religious reasons—but she did not affirmatively tell the interviewer that this was the case. The interviewer recommended that she be hired. A supervisor overruled the recommendation on the basis that wearing a hijab did not comport with Abercrombie’s “Look Policy,” which generally required employees to dress in accordance with the brand’s image. This despite the fact that other Muslim Abercrombie employees had been granted an accommodation to wear a hijab.

Abercrombie has—in my view, shamefully—taken the position that it was not required to accommodate the applicant because she had not affirmatively disclosed to the interviewer that she was wearing a hijab for religious reasons and would need to wear it on the job. The appeals court sided with Abercrombie—against a number of other appeals courts that had previously held to the contrary—and the Supreme Court is set to decide the case before June.

What this could mean, if it comes out against Ms. Elauf, is that observant Jews will need to affirmatively and specifically raise Shabbos, holidays, kosher, and any other restrictions that might theoretically come up during the course of the job at the initial interview—even if they are clearly and obviously observant—and that if they do not, the employer will have carte blanche authority to fire them for their religious practices, even if a reasonable accommodation is available. Meanwhile, with employees forced to raise the conversation at the initial interview, employers will have a wide open door to engage in just the kind of furtive and un-provable discrimination that so many have faced in years past, and continue to face in certain areas and industries. Moreover, a person who becomes more observant while on the job may be precluded from seeking reasonable accommodations for newfound Shabbos and holiday observance.

Organizations from across religions and denominations—from Muslim to Sikh to virtually every strand of Judaism—have submitted friend of the court briefs urging the Supreme Court to rule in the job applicant’s favor. Arguments have been heard. The justices have the case. All that’s left to do is pray that they decide it the right way.

Sincerely,

Akiva Shapiro, guest blogger – Jew in the City

Akiva Shapiro is a constitutional litigator at Gibson, Dunn & Crutcher in New York with significant experience in issues relating to religious liberties

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Akiva Shapiro About Akiva Shapiro

Akiva Shapiro is a constitutional litigator at Gibson, Dunn & Crutcher in New York with significant experience in issues relating to religious liberties.

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  1. TL;DR: for a job to work for everyone, you have to be worth hiring despite restrictions, and the employer has to be willing to live with the restrictions, so disclose early.

    I have not experienced any overt religious discrimination, to the contrary, employers have bent over backwards to accommodate my needs. However, I have always disclosed my restrictions – along with my willingness to work around them whenever possible – as soon as practical in the hiring process.

    I don't lead with this in the initial interview – first, let's see if the job is a fit. But if it is, "there's something you should know…" The bottom line is that I would rather not get offered the job if the employer's culture isn't oriented towards working with me on these issues, because it will be a disaster. It's true that there are times when I can't work. But I'll only bow out when I absolutely must for religious reasons, and when I can work, you're going to get more out of me than anyone else. That's the tradeoff – and the promise.

  2. I actually just experienced this very issue!! I just became a registered nurse and the first thing they ask is “what is your availability/what scheduling restrictions do you have,” because hospital nursing is a 24/7 job. Now I knew this would be a likely question and I had to answer, but I had already decided to do everything with integrity; trying to skirt the question or lying is not in line with my belief and my character. So I was totally up front about it and said “I can’t work Shabbos and certain holidays but otherwise I am totally flexible. I can also work all the Christian/American holidays that people want off.” I figured that you just have to be honest and up front and trust that G-d would bring me to the correct job in the correct time. And everything, Baruch Hashem, worked out and I was hired for the position at my dream hospital. They won’t schedule me during shabbos and Yom Tov and I am making it work with them. I think they valued my honesty in not trying to hide it and in being really flexible and willing to work other shifts. Even though it was stressful in this tough job market, I knew that it was the only option for me and all worked out for the best.

  3. I always wore my kippah during interviews so my preferences were clear to most people. That brought on some very Anti-Semitic comments in some interviews, believe it or not. But I would not want to work at such a place anyway. In the end, my being Jewish might have been an impediment at some companies but it did not preclude me from finding work. Of course, now that I live in Israel, it is not an issue at all. That is the real solution.

  4. Catholic Mom says:

    With all due respect to the author of this piece, who obviously knows a tremendously more about the relevant case law than I do, I’m not sure that the implications of the case are that if Abercrombie prevails then people must tell about their religious restrictions in an interview. Abercrombie’s position (as I understand it) is that they did NOT consider (absurdly) that this headscarf was being worn for religious reasons. That is — they just refused to hire her because she was wearing clothes that didn’t fit their image in that she was wearing an unfashionable head covering and that it was black. And “gosh, it’s not our responsibility to know that her choice in dress is some religious thing — she should have told us it was.” So they are saying — “you can’t put the onus on US to know that something is being worn for religious reasons — the person has to say something about it.” So I don’t think the question here is “do you have to disclose your religious restrictions during the interview?” (as opposed to later) but “if an employer detects something about a job candidate during an interview that would potentially keep the employer from making an offer, is it up to the employer to ask if this is religiously based (and hence to consider possible accommodations) or is it up to the employee to affirmatively disclose that anything unusual about themselves is religiously based?” And Abercrombie’s position is “well, there could be millions of things that people do/wear for religious reasons [painting yourself green was an actual example given] and is it our job to guess what things about the interviewee are religious and what things are just them being themselves?”

    So the Jewish analogy would be — let’s say an employer is interviewing an Orthodox Jew for a job and the employer says “so we have a Friday EOD deadline on all of these big projects and we frequently stay late if necessary to meet them. Is that going to be a problem?” and the Jewish guy says “I refuse to work late on Fridays” and the employer says “OK, well nice talking to you, we’ll get back to you.” And the employer then doesn’t hire the guy because he apparently has a really bad attitude and clearly intends to shirk important job responsibilities. . Should the employer have been able to guess by the person’s dress (or other clues) that the leaving on Friday was a religious thing (and hence asked if there were a religious connection and then possibly attempted to make an accommodation) or was the onus on the interviewee to disclose that? (That is, should he have said “I’m unable to work after sundown on Fridays for religious reasons”? ).

    The absurdity here is that Abercrombie knew perfectly well that the scarf was a religious thing, but the question, outside of the circumstances, is not without some interest.

  5. D. Besemer says:

    Mr. Shapiro’s assumption that wearing a yarmulke to a job interview makes it self evident that one is fully observant is erroneous. I’ve known Conservative and Reform Jews who wear kipot regularly, but only keep ‘kosher style’ and who attend services on Shabbos, but are not fully Shomer Shabbos. If an interviewer is (only) familiar with such non-Orthodox Jews, he/she may not grasp that the applicant’s wearing of a yarmulke is supposed to be ‘code’ for ‘Shomer Shabbos’.

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