United States: Supreme Court Ruling Highlights Risks For Employers At Interview

David Santeusanio is a Partner in the Boston office.

Plaintiff Can Prove Title VII Claim by Showing That Employer Suspected Applicant Required Religious Accommodation


  • In EEOC v. Abercrombie & Fitch Stores, Inc. the U.S. Supreme Court rejected Abercrombie's argument that a plaintiff must show that an employer has actual knowledge that the applicant required a religious accommodation.
  • An employer that "acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed."   
  • The Court's decision underscores the need for employers to train managers on how to effectively manage religious and disability accommodation issues.

The United States Supreme Court issued an 8-1 ruling in favor of the Equal Employment Opportunity Commission (EEOC) in EEOC v. Abercrombie & Fitch Stores, Inc.The Court ruled that Abercrombie violated Title VII by refusing to hire a job applicant because she wore a headscarf – which would have violated Abercrombie's Look Policy prohibiting "caps" – where Abercrombie suspected, but did not have actual knowledge, that she wore the headscarf for religious reasons. The Court's decision, issued June 1, 2015, underscores the challenges that employers face when interviewing candidates and evaluating whether a religious accommodation may be required.   

Background of Abercrombie and Job Applicant

Abercrombie operates a line of clothing stores. The company maintained a Look Policy designed to ensure that its store employees dress in a manner consistent with Abercrombie's image. The Look Policy prohibited "caps."   

Samantha Elauf, a practicing Muslim, applied for a sales floor position at an Abercrombie store. The store's assistant manager interviewed Elauf. At her interview, Elauf wore a headscarf. Elauf did not disclose that she was Muslim or explain why she wore the headscarf – and the assistant manager did not ask. The assistant manager did not tell Elauf that if she was hired she would be prohibited from wearing a headscarf.

The assistant manager used Abercrombie's system for evaluating applicants and gave Elauf a rating that qualified her for a job offer. But the assistant manager was concerned that the headscarf would violate the Look Policy. The assistant manager spoke with the district manager, who told the assistant manager that Elauf's headscarf would violate the Look Policy and directed the assistant manager not to hire Elauf.   

EEOC, suing in federal District Court on Elauf's behalf, argued that Abercrombie violated Title VII. The District Court granted summary judgment in favor of EEOC on the issue of liability. After trial on the issue of damages, the District Court awarded damages of $20,000. Abercrombie appealed to the Tenth Circuit Court of Appeals. The Tenth Circuit concluded that to prove religious discrimination under Title VII, a plaintiff must prove that the employer had actual knowledge that the plaintiff had a need for an accommodation. The Tenth Circuit reversed the District Court's grant of summary judgment and directed that the District Court enter summary judgment in favor of Abercrombie. EEOC appealed to the Supreme Court.   

Supreme Court's Decision: Plaintiff Prevails on Claim by Showing Employer's Motivation to Avoid Religious Accommodation

The Supreme Court rejected Abercrombie's argument that a plaintiff must show that an employer has actual knowledge that the applicant required an accommodation. The Court concluded, instead, that "an applicant need only show that his need for an accommodation was a motivating factor in the employer's decision."   

The Court explained the distinction between knowledge and motive. An employer that has actual knowledge that an applicant needs an accommodation does not violate Title VII by refusing to hire the applicant if avoiding an accommodation is not the motive. But an employer that "acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed."   

In a footnote, the Court addressed whether motive can be proven with something less than a showing that an employer had a suspicion that an applicant or employee has a religious practice requiring an accommodation. The Court stated, "[I]t is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice – i.e., that he cannot discriminate 'because of' a 'religious practice' unless he knows or suspects it be a religious practice." The Court further explained that in this case "Abercrombie knew – or at least suspected – that the scarf was worn for religious reasons." Because this case did not present the question of whether a plaintiff could prove motive with something less than a showing that the employer suspected that the individual had a religious practice, the Court declined to address that issue.   

The Court further explained an employer's obligation under Title VII to accommodate a religious practice. Abercrombie maintained a neutral policy concerning caps: it applied to all headwear, religious and non-religious. But as the Court explained, "Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not 'to fail or refuse to hire or discharge any individual ... because of such individual's' 'religious observance and practice.'" The Court concluded that "Title VII requires otherwise-neutral policies to give way to the need for an accommodation."   

The Challenges of Addressing Potential Religious Accommodation at Interview Stage

This case highlights the challenges of effectively addressing, at the interview stage, potential religious accommodation questions. As a general matter, an employer should not ask an applicant about his or her religious beliefs during an interview. This case arose because of the employer's suspicion (which proved correct) that the applicant had a religious practice that required an accommodation. An interviewer's suspicion, of course, can arise in a variety of ways and from any number of cues – a statement in the interview, the wearing of a religious item or symbol, or the manner of grooming or dress. Therefore, employers should provide guidance to interviewers who suspect an individual has a religious practice that conflicts with a workplace rule as to what, if anything, to say during the interview process. In the appropriate circumstance, these options may include the interviewer informing the applicant of a particular work rule (a dress code or grooming rule, for example), and asking whether the applicant can comply with the policy, with or without an accommodation.   

Training Managers to Address Accommodation Issues

The Court's decision underscores the need for employers to train managers on how to effectively manage religious and disability accommodation issues. Accommodation questions are inherently fact-specific and require the employer and employee to engage in an interactive process to find a mutually acceptable accommodation. In addition to the issues raised by this case, religious accommodation frequently raises other challenging issues for employers such as:

  • how to address an accommodation request when a job applicant expressly states that an accommodation is required
  • whether the employer can suggest that certain religious items be covered or concealed
  • whether an individual has a "sincerely held" religious belief and what steps an employer may take to assess that issue
  • whether a requested accommodation presents an undue hardship to the employer

Human resources professionals and managers should be trained on how to address these types of issues, and front-line managers should know when to seek assistance from well-informed human resources departments.

Employers: Adopt Best Practices to Minimize Legal Risk

While the Court's decision does not fundamentally change the landscape of religious discrimination law, it highlights the challenges interviewers face when they have information suggesting a religious accommodation may be required. With effective training and adopting best practices, employers can minimize legal risk associated with interviewing and hiring, particularly in the challenging area of workplace accommodations.    

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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