United States: EEOC v. Abercrombie & Fitch: Do You Need To Ask Applicants Whether They Require Religious Accommodation?

Last Updated: June 12 2015
Article by Stephanie Wilson, James A. Burns, Jr. and Megan E. Farrell

Most Read Contributor in United States, October 2017

On June 1, 2015, the United States Supreme Court held that a job applicant can establish religious discrimination under Title VII of the Civil Rights Act of 1964 without proof that the employer had "actual knowledge" of the applicant's need for an accommodation; instead, the applicant "need only show that his [or her] need for an accommodation was a motivating factor in the employer's decision" (emphasis added). Writing for eight of the Court's nine Justices, Justice Scalia explained that employers "may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions." EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86, ___ S. Ct. ___ (2015).

Background

The EEOC sued Abercrombie & Fitch, a clothing retailer, on behalf of Samantha Elauf, a Muslim woman who had worn a headscarf to her job interview. Although the interviewer gave Elauf a rating that qualified her to be hired, she was concerned that Elauf's headscarf would conflict with the chain's "Look Policy," which, among other things, prohibits "caps" as too informal for Abercrombie's desired image. Although the interviewer believed that Elauf wore the headscarf for religious reasons, she never asked Elauf about that. Following the interview, the interviewer asked her district manager whether the headscarf would be a forbidden "cap," expressing her belief that Elauf wore it "because of her faith." The district manager said that all headwear violated the Look Policy, religious or otherwise, so Elauf was not hired.

The district court granted the EEOC summary judgment on the issue of whether Abercrombie had discriminated against Elauf because of her religion, held a trial on damages, and awarded her $20,000. The 10th Circuit Court of Appeals reversed and awarded Abercrombie summary judgment by holding, as a matter of law, that employers cannot intentionally discriminate under Title VII based on a failure to provide reasonable accommodation unless they have "actual knowledge" of an applicant or employee's need for accommodation. Because Abercrombie lacked actual knowledge of Elauf's need for a religious accommodation, the 10th Circuit held that it had not violated the statute.

The Supreme Court Rejects Any "Actual Knowledge" Requirement

In reversing the 10th Circuit, the Supreme Court first held that Title VII's prohibition against discrimination because of religion or some other protected characteristic requires plaintiffs to show only that the characteristic was "a motivating factor" in the employer's actions, not that the employer had actual knowledge of the characteristic. But the Court left unclear just what sort of knowledge – or even suspicion – an employer must have in order to trigger its obligation to explore the possible need for religious accommodation with an applicant or employee. While the Court said it was "arguable" that a plaintiff such as Elauf had to show that "the employer at least suspects that the practice in question is a religious practice," it held that issue was "not presented in this case," giving employers little practical guidance as to what they should do to avoid liability.

The Court also rejected Abercrombie's argument that a claim based on failure to accommodate an applicant's religious practice does not have to be brought as a disparate impact claim. It reasoned that Congress had not limited the meaning of "religion" in Title VII to religious belief, but instead defined the term broadly to "include all aspects of religious observance and practice, as well as belief." The Court also rejected Abercrombie's argument that its "Look Policy" was lawful because its prohibition on caps does not single out religious headwear. The Court held that Title VII requires more than neutrality toward religious practices; "[r]ather, it gives them favored treatment, affirmatively obligating employers not 'to fail or refuse to hire or discharge any individual ... because of an individual's' religious observance and practice" (emphasis added).

Implications of The Court's Decision

There is a natural tension between the Court's holding in Abercrombie – that an employer need not have actual knowledge of a conflict between an applicant's religious practice and a work rule in order to trigger its obligation to ask about religious accommodation – and the EEOC's general guidance that an employer should not ask applicants about their religious affiliations or beliefs. Because questions about an applicant's religion could themselves give rise to a discrimination claim, employers are likely safer raising that subject only where, as in Abercrombie, they know or have reason to suspect that the employee's practice is religious. Employers should ensure that all applicants are given full notice of all essential job functions and other workplace policies, including those relating to appearances and the days and hours they must work, and that they ask applicants if any such requirements may cause a problem. That gives applicants the opportunity to raise any possible conflicts based on religion and open the door to a discussion about possible accommodations. In this way, employers may avoid religious discrimination claims while satisfying any potential accommodation requirements.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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