The U.S. Supreme Court has made clear in EEOC v. Abercrombie
& Fitch Stores, Inc., No. 14-86, 2015 U.S. LEXIS 3718
(U.S. June 1, 2015), that an employer must not only accommodate an
applicant's religious belief or practice, but also ask whether
a suspected conflict between a work rule and religion in fact
exists if the applicant does not raise the issue.
Samantha Elauf applied for a position with Abercrombie & Fitch
Stores, Inc. (Abercrombie), a retail clothing company well known
for its signature "preppy" style. In keeping with its
image, Abercrombie stores require employees to comply with a
"Look Policy," or dress code. Elauf, a practicing Muslim,
wore a headscarf to her interview with the assistant store manager.
Although the assistant store manager determined Elauf was qualified
based on Abercrombie's ordinary applicant evaluation system,
she was concerned Elauf's headscarf would run afoul of the
store's Look Policy, which banned "caps" without
further description. The assistant store manager ultimately
consulted with the district manager, saying she believed Elauf wore
a headscarf because of her faith. The district manager determined
that Elauf's headscarf, like all other headwear, would violate
the Look Policy and directed that Elauf not be hired.
The Equal Employment Opportunity Commission sued Abercrombie on
Elauf's behalf, alleging that its refusal to hire her violated
Title VII of the Civil Rights Act of 1964. The district court
found, at the summary judgment stage, that Abercrombie was liable
and, after a trial, awarded $20,000 in damages. The U.S. Court of
Appeals for the Tenth Circuit reversed, concluding that an employer
ordinarily cannot be liable under Title VII for failing to
accommodate a religious practice until the applicant or employee
notifies the employer of her need for an accommodation.
The Supreme Court reversed the Tenth Circuit's ruling and
remanded the case. Writing for the Court, Justice Antonin Scalia
rejected Abercrombie's argument that an applicant cannot show
unlawful disparate treatment, or "intentional
discrimination," under Title VII unless the employer had
"actual knowledge" of the need for an accommodation.
Instead, the applicant must only show that her need for an
accommodation was a motivating factor in the employer's
decision. Thus, the Court articulated the following rule for
disparate treatment claims based on failure to accommodate a
religious practice: "An employer may not make an
applicant's religious practice, confirmed or otherwise, a
factor in employment decisions."
The Court observed that Title VII prohibits an employer from
failing or refusing to hire an applicant "because of" the
individual's religious belief or practice (barring undue
hardship). The Court noted that Title VII does not contain a
knowledge requirement, whereas some other nondiscrimination
statutes do, and declined to read such a requirement into the
statute. The Court thus characterized the "because of"
standard as prohibiting certain motives independent of the
actor's knowledge. It observed that "an employer who 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 raised, but did not
resolve, the question of whether the employer must at least suspect
that the practice in question is a religious practice in order to
discriminate "because of" a religious practice.
Finally, the Court rejected Abercrombie's argument that a
neutral policy cannot constitute disparate treatment, stating that
Title VII gives religious practices "favored treatment"
and "requires otherwise neutral policies to give way to the
need for an accommodation."
This case places the burden squarely on employers to initiate a
dialogue if there is any suspicion at all that an applicant may
have religious accommodation needs. At the same time, such inquiry
itself risks turning every decision not to hire a candidate into a
potential religious discrimination claim. It also remains unclear
what the courts will do in situations wherein the applicant's
religious practice is not visible or otherwise apparent. In
Abercrombie, the assistant store manager articulated her
suspicion that Elauf wore the headscarf because of her faith.
However, other religious accommodation cases may present facts
where there is no possible way to prove motive without knowledge,
such as when the employer had no reason to suspect the applicant
may have needed an accommodation.
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