On June 1, 2015, the United States Supreme Court issued its decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the widely watched “headscarf case” under the religious discrimination prohibition of Title VII of the Civil Rights Act of 1964 (Title VII). The decision interprets the language of Title VII that prohibits employers from refusing to hire an applicant in order to avoid accommodating a religious practice that the employer could accommodate without undue hardship. The Court held that what the employer knows about the reason for the applicant’s need of an accommodation is not the point; it is what motivates the employer not to provide the applicant with an accommodation that counts.

We bet you had to read that last sentence a couple of times and that you still aren’t sure you understand. You are not alone. Tracking with the High Court’s decision in Abercrombie requires some explanation, and complying with it likely will require a change in front-line hiring practices. The decision expands Title VII liability to situations where a job applicant has not informed the employer of his or her need of an accommodation or, even if s/he has, of the religious nature of that need. And that is new.

In Abercrombie, the Equal Employment Opportunity Commission (EEOC) brought suit on behalf of Samantha Elauf, a practicing Muslim, claiming that Abercrombie & Fitch violated Title VII when the company denied her employment. Consistent with her understanding of her religion’s requirements, Elauf wore a headscarf, or hijab – and was doing so when she interviewed with a store assistant manager for a floor sales position. Although the assistant manager found Elauf to meet Abercrombie’s criteria for the job, Elauf did not receive an offer because her headscarf violated Abercrombie’s dress code prohibition against “caps”.  

Elauf never told Abercrombie that she wore her hijab for religious reasons or that she would need an accommodation to do so at work, and Abercrombie never asked her about the hijab or her reason for wearing it. Notably, the Court presumed for purposes of the appeal that the assistant manager who interviewed Elauf had suspected that Elauf was Muslim and wore the hijab for religious reasons.

Abercrombie had argued successfully to the Tenth Circuit Court of Appeals, below, that an applicant like Elauf must show that the employer had actual knowledge of the applicant’s religious practice and the practice’s conflict with a company rule in order for the employer to be found liable for having failed to accommodate him or her based on religion in violation of Title VII. The Company urged the Supreme Court to adopt that same standard of liability.

But the Supreme Court declined to do so, reversing the Tenth Circuit’s decision. Instead, the Court applied a disparate treatment (rather than disparate impact) analysis and concluded that an employer’s motivation for rejecting a candidate may be discriminatory even if the candidate has not told the employer that s/he will need an accommodation and even if the employer does not actually know that the practice it wishes to avoid accommodating is religious in nature. According to the Court, it is the employer’s motivation, not its knowledge, that is critical under Title VII’s plain language.

Unlike the Americans with Disabilities Act of 1990 (ADA), Title VII includes no requirement that an employer have actual knowledge of the reason for an applicant’s need of an accommodation. Therefore, according to the Supreme Court, if the employer is motivated by the applicant’s need of an accommodation – known or only suspected – and rejects the applicant for that reason, the employer runs afoul of Title VIII if the need is religious – whether the employer knew it or not. 

The Court’s majority deliberately avoided deciding whether an employer’s motivation to avoid accommodating a religious practice requires knowledge that the practice/need for accommodation is religious. Because the assistant manager who had interviewed Elauf had suspected Elauf’s wearing of a hijab to be religious, and because neither party had briefed or argued the knowledge issue, the Court reasoned, that issue was not before the Court for decision. 

In his concurring opinion, however, Justice Alito analyzed the motivation/knowledge issue, arguing that it ought to be decided as a question likely to be raised on remand or, if not then, in future cases. He concluded that an employer’s knowing that a practice is religious is essential to a finding that the employer’s motivation was to avoid the accommodation of a religious practice in violation of Title VII. Indeed, he found that conclusion “obvious” and urged that a contrary conclusion in the Abercrombie case (and, implicitly, in others) would be “very strange.” But employers need to keep in mind that, as persuasive and “common sense” as Justice Alito’s reasoning and conclusion might be, the Court’s majority explicitly declined to adopt either, for now at least.

In its opinion, the majority also raised an issue, disputed by Justice Alito in his concurrence that is certain to result in additional litigation and case law down the road. In a footnote, the Court observed that, under Title VII, it is an applicant’s burden to prove that the employer did not provide a reasonable accommodation of his/her religious practice. Justice Alito argued, to the contrary, that Title VII by its plain language imposes the burden on the employer to prove, as an affirmative defense, that it did provide a reasonable accommodation. While seemingly subtle, the implications in litigation of that distinction are significant. Among other things, if an applicant must allege and prove a negative, s/he is more likely not to survive a motion for summary judgment and to fail at trial. If the burden falls to the employer to prove the affirmative, the employer loses that significant strategic advantage.

So who won the Abercrombie case? We will not know until the courts below, to whom the Supreme Court remanded the matter, apply the Court’s new standard to the facts of the case, which may need to be fleshed out in light of the Court’s decision. What we do know is that Elauf will have to prove to the court below that Abercrombie did not reasonably accommodate her religious practice. It seems to be clear from the record to date that the company offered her no accommodation. If so, then Abercrombie will have to show that for it to have provided such an accommodation would have resulted in an undue hardship to the company.

The standard of “undue hardship” under Title VII is not entirely clear, but generally is considered and treated by the courts to be a lesser one than the “undue hardship” standard under the ADA. To establish this affirmative defense, an employer must show that for it to provide an accommodation would result in more than a “de minimis” (minimal) hardship in light of the size and nature of its business. Drawing on federal case law, the EEOC has noted in its “Facts About Religious Discrimination” publication that employers may show that an accommodation would be unreasonable if it is too expensive, jeopardizes workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their fair share of work. 

Neither the EEOC nor any court has articulated a clear formula for determining what constitutes more than a de minimis hardship in any of these categories. But courts have acknowledged that company image that reflects customer preference can qualify as a legitimate justification. Employers must keep in mind, however, that courts tend to find quantifiable hardships more compelling than hypothetical or normative ones.

We do not know whether, on remand to the Tenth Circuit or to the district court, Abercrombie will be allowed to argue that it could not have reasonably accommodated Elauf’s religious practice in order to prove the defense, or, if it is allowed, whether it will be able to do so. According to the Supreme Court’s decision, the company did not even consider the issue within, never mind talk with Elauf about it. If the company attempts to make the necessary showing, however, the lower court will need to determine if the hardship to Abercrombie in providing her an accommodation would amount to something more than de minimis based on the specific facts of the case.

In light of Abercrombie, employers should reconsider their hiring procedures and practices. Where a job applicant appears for an interview wearing articles of clothing or jewelry or evidencing tattoos or piercings that would run afoul of the employer’s dress code or grooming policy, the interviewer should either show or describe the applicable code/policy to the applicant and ask if there is any reason s/he cannot meet its requirements. If the answer is yes, the interviewer should ask which requirements and why. If the answer implies a religious reason (or a potential disability), the interviewer should ask what accommodation might be necessary, get as many details as possible and then take the matter to the appropriate manager(s), if the interviewer is not that person, for handling. But that will require training of “front-line” interviewers who otherwise might not pick up on the issue or follow up appropriately.

Of course, we advise against an employer’s asking any candidate if s/he ascribes to a particular religion or faith, just as we advise against an employer’s asking if a candidate has any medical condition that might qualify as a disability. But the Supreme Court’s decision in Abercrombie makes clear that what an employer does not know can hurt it. So, where the appearance of an applicant indicates that s/he may need to follow a religious practice, ignoring that appearance because s/he has not “uttered any magic words” is unwise. It is far better to have the conversation and either dismiss or deal with the accommodation issue at the application stage than to have to do so after hire.