On June 1, 2015 the U.S. Supreme Court revived a religious discrimination claim against Abercrombie & Fitch (“Abercrombie”) after the fashion retailer denied employment to a Muslim woman because the headscarf, or hijab, worn as part of her religious observance violated the company’s dress code.  EEOC v. Abercrombie & Fitch Stores, Inc., 2015 U.S. LEXIS 3718 (June 1, 2015). In overturning summary judgment granted in favor of Abercrombie, the Court held that Title VII does not require proof that the employer had actual knowledge of the individual’s need for religious accommodation, but only that the religious practice was a motiving reason for the employer’s adverse employment action. In making this ruling, the Court found that Title VII’s requirement that employers reasonably accommodate their employees’ religious practices goes beyond merely demanding that religious practices be treated no worse than other practices, but rather gives religious practices favored treatment.

The case arose from Abercrombie’s “Look Policy,” which establishes appearance guidelines for employees. The Look Policy requires employees to wear clothing exemplifying the brand’s “casual,” “preppy” style and prohibits the wearing of “caps” — a term left undefined in the policy.

Samantha Elauf applied and interviewed for a position as a store associate.  She wore a hijab to her interview, but did not mention her religion or ask whether wearing a hijab would conflict with the Look Policy.  The interviewer suspected that Elauf wore the scarf for religious purposes, but did not ask. Rather, she sought guidance from her supervisor, who advised that the Look Policy prohibited all headgear.  For this reason, Abercrombie rejected Elauf’s application.

The Equal Employment Opportunity Commission (“EEOC”) filed suit against Abercrombie on Ms. Elauf’s behalf alleging religious discrimination in violation of Title VII.  The EEOC claimed store managers declined to hire Ms. Elauf because they believed her hijab violated the Look Policy’s headgear ban.  The retailer responded that it did not know that Ms. Elauf was Muslim, or that she wore a hijab as part of her religious practice.  Before reaching the Supreme Court, Abercrombie successfully argued to a lower court that Ms. Elauf’s religious accommodation claim required a showing that the employer have actual knowledge of the applicant’s need for accommodation of a religious practice.

The Supreme Court rejected the retailer’s argument, finding that an employer will be liable if a desire to avoid accommodating a religious practice is a “motivating factor” in the employer’s adverse employment decision. In rendering its decision, the Court distinguished Title VII, which does not expressly include a knowledge requirement in its statutory language, from other discrimination statutes, such as the Americans With Disabilities Act, that do.

The Court noted that “it 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.” It declined, however, to address the issue because Abercrombie had suspected that Elauf wore the scarf for religious purposes and therefore neither side had addressed the question.

To avoid similar claims, employers should train interviewers to be alert to potential religious accommodation issues, and to refer them to Human Resources or other responsible personnel for resolution. In its application procedures employers should, as they do for ADA compliance, include disclosure of job requirements, including any applicable appearance standards and ask applicants whether they need any accommodation to comply.  The employer can then consider – and if necessary discuss with the applicant — whether and how, it can reasonably accommodate the applicant’s religious practice.