Employers should be aware of the shifting landscape in the duty to accommodate, as highlighted in two recent U.S. Supreme Court decisions: U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch Co. and Peggy Young v. United Parcel Service Inc.

Both cases illustrate the recent trend of increasing the burden placed on employers when faced with an employee’s need, or potential need, for an accommodation. While these cases involved discrimination under Title VII, employers should not assume that the reasoning applied in Abercrombie and Young is exclusive to Title VII.

U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch

In Abercrombie, Samantha Elauf, a practicing Muslim, interviewed for a position at Abercrombie. Elauf wore a hijab (a headscarf) during the interview. However, neither Elauf nor the Abercrombie assistant manager discussed the headscarf or Elauf’s religion during the interview. Following the interview, the assistant manager determined that Elauf was qualified for the position but expressed concern that Elauf’s headscarf violated Abercrombie’s look policy, which prohibited employees from wearing “caps.” Abercrombie decided not to hire Elauf because of the potential look policy violation.

The U.S. Equal Employment Opportunity Commission (EEOC) brought suit on behalf of Elauf, claiming that Abercrombie violated Title VII when it denied Elauf employment. One of Abercrombie’s primary defenses was that it had no knowledge of Elauf’s religion or need for a religious accommodation and that it was Elauf’s duty to request such accommodation if needed. The Supreme Court ultimately rejected Abercrombie’s lack of knowledge argument and held that actual knowledge of the need for a religious accommodation is not required under Title VII. The Supreme Court further held that an employer who acts with the motive of avoiding an accommodation may violate Title VII, even if the employer has no more than an unsubstantiated suspicion that the accommodation would be needed. The Supreme Court reasoned that the need must only be a motivating factor in the employment decision.

Applying these rules, the Supreme Court reasoned that if Elauf’s headscarf violated Abercrombie’s look policy and Abercrombie had reason to suspect the headscarf was a religious requirement, then Abercrombie could not consider the policy violation when determining whether to hire Elauf.

Impact of Abercrombie in the Americans with Disabilities Act (ADA) Context

While Abercrombie concerned religious accommodations under Title VII, the Supreme Court’s reasoning easily could extend to other accommodation cases, for example, cases under the ADA Act. Unlike Title VII, the ADA reasonable accommodation statutory language requires “actual knowledge.” However, the ADA also prohibits discrimination against individuals who are “regarded as” disabled. This portion of the statute does not have an “actual knowledge” requirement. The jump from Title VII religious accommodations to the ADA is not a big one, particularly in the context of mental illness.

For instance, take an employee whose “stress” or “anxiety” negatively impacts performance. In light of Abercrombie, the employer no longer should rely on the defense of no actual knowledge of a disability when making an employment decision, as the employer may be liable for acting on mere suspicion of a disability or for trying to avoid the possibility of an accommodation in the future. When faced with conduct that gives the employer reason to believe the employee may be suffering from a disability, the safest option for the employer is to engage in the interactive process before instituting any potentially adverse action.

Peggy Young v. United Parcel Service Inc.

Shortly before its Abercrombie decision, the Supreme Court issued its opinion in Young. Peggy Young, a United Parcel Service Inc. (UPS) employee, was required to lift 70 pounds as part of her job duties. Due to her pregnancy, however, she had a 20-pound lifting restriction and requested light duty. Under company policy, UPS granted light duty to employees who were hurt on the job, qualified for an accommodation under the ADA, or had lost their U.S. Department of Transportation license. UPS denied Young’s request for light duty, reasoning that Young did not qualify for the accommodation pursuant to its policy.

Young filed suit, alleging that UPS's denial of light duty violated the Pregnancy Discrimination Act (PDA), and the case reached the Supreme Court. Under the PDA, employers must treat “women affected by pregnancy ... the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” UPS argued that it satisfied the PDA because it treated Young the same way it treated similar nonpregnant workers — meaning regardless of pregnancy, if an employee does not qualify for one of the three options for light duty, the employee is not granted the accommodation.

In analyzing Young’s claim, the Supreme Court looked beyond UPS' treatment of pregnant versus nonpregnant employees and, instead, focused on how UPS treated other workers with similar lifting restrictions. The Supreme Court reasoned that if other employees with 20-pound lifting restrictions were given light duty under UPS's policy, for instance, if they were injured on the job, and Young was not given a similar accommodation because her restriction was due to pregnancy, then Young could establish a prima facie case of discrimination. The Supreme Court further reasoned that the denial of light duty to pregnant employees placed a burden on the employees and required UPS to justify a reason for the burden.

Impact of Young on Transitional Duty Programs

Many employers utilize light duty or transitional duty programs for on-the-job injuries. The impact of Young goes beyond whether pregnant employees should be given light duty and questions the viability of employers continuing to provide such light duty or transitional duty programs only to those who are injured on the job. For example, if an employee has an anxiety disorder that requires a recurring, but temporary, light duty period, such accommodation arguably is required under Young, regardless of any policy limiting light duty to employees who are injured on the job. The Supreme Court’s reasoning in Young illustrates that an employer’s policies and practices of accommodating certain employees may be considered in determining whether to accommodate other employees and, further, that an employer may have to justify the burden placed on the employee when an accommodation is not granted.

Navigating the Shifting Landscape

The Supreme Court decisions in Abercrombie and Young indicate a shift in the burden of the duty to accommodate from employee to the employer. These cases should serve as a reminder that employers must engage in the interactive process and that a lack of knowledge is not likely to protect employers from liability. When an employer suspects that an employee is having trouble performing his or her job because of a religious concern, potential pregnancy, disability or potential need for an accommodation, the employer should discuss the issue with the employee and, when appropriate, engage in the interactive process.

When determining the type of accommodation to provide, employers should look to the accommodations they have provided to other employees. When evaluating whether an accommodation is reasonable for a pregnant employee, for a religious accommodation or for a disability, the employer must analyze its policies and practices, particularly light duty policies, to determine whether to give an accommodation.

Lastly, employers must be training managers to recognize and resolve potential accommodation concerns. As the accommodation burden continues to shift from employees to employers, it is more important than ever for employers to be training their employees to identify when to engage in the interactive process and how to engage in the interactive process. Whether courts will extend the reasoning from Abercrombie and Young to the ADA or transitional duty programs remains to be seen; however, employers should be cognizant of the potential impact these cases may have on their duty to accommodate and take proactive measures to reduce potential liability.