When Do You Mention Shabbos Observance in A Job Interview?

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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