Yesterday, the Supreme Court of the United States issued its long-awaited opinion in EEOC v. Abercrombie & Fitch Stores, Inc., where it addressed questions surrounding the obligation of an employer to make a religious accommodation.  The decision is an important one, so an understanding of what the Court exactly concluded and how its dictates should be adopted for employers on a day-to-day basis is essential.  In order to truly gain that understanding, though, let’s briefly take a bit of a bigger-picture look at the issue of religious accommodation in general first. Most people look at freedom of religion as a constitutional right and it certainly is, but religious entitlements are legally much more than that.  The right to be free from discrimination and harassment because of religion is protected by Title VII of the Civil Rights Act of 1964, and by the Equal Employment Opportunity Commission (“EEOC”).  In fact, the EEOC has paid increasing attention to these rights in recent years, including in the area of reasonable accommodation related to bona-fide religious beliefs.

According to the EEOC, the law protects individuals belonging to traditional, organized religions as well as those who have sincerely held religious, ethical, or moral beliefs – even if few or no others share the belief, and even if the belief is not shared by others in the organized religion.  For example, one member of a religion may believe that you shouldn’t eat meat according to the Bible, while another member of the same faith may not share that belief.  As long as they are sincere, both beliefs are protected.  Federal law and most state laws generally further provide that religious accommodations must be made under certain circumstances.

However, not every accommodation an employee may want must be provided.  Sometimes, the employee may have a mere personal preference, which is not protected.  Tattoos make a good example.  Some tattoos are reflective of religious beliefs, and thus are protected.  An employee even may sincerely believe that it is a sin to cover a tattoo because it will offend God.  On the other hand, if an employee believes that tattoos are religious because they reflect a belief in body art as self-expression, but the tattoos are not related to a religious belief system, then the tattoo is considered to be a mere personal preference, not a protected religious belief.  No accommodation is required in that situation.

One issue which has come up in the courts on several occasions is whether an employer can be legally responsible for failing to provide a religious accommodation if it does not know that its employee’s request for an accommodation was based on a religious belief.  For example, in a one recent case, a Rastafarian applied to be a security guard.  The company he was applying with had a grooming policy.  The Rastafarian held a religious belief that he could not cut his dreadlocks.  At his job interview, after the interviewer informed him of the company’s grooming policy, the Rastafarian stated that cutting his hair is “against my belief,” but he did not explicitly mention religion.

After the Rastafarian was not hired because of his hair, he brought suit.  The interviewer testified that he did not link the plaintiff’s statement about his “belief” to religion and did not realize that it was a religious belief.  Because the court found the interviewer’s testimony to be credible, the court held that the company was not liable for a failure to accommodate because it had not realized that he had a religious belief.

However, not all courts have evaluated this issue the same way.  In fact, that’s why the United States Supreme Court ultimately took up the questions that it did in the Abercrombie case.  In the suit, the EEOC brought legal action after Abercrombie refused to hire Samantha Elauf based on Abercrombie’s “Look Policy.”  The Look Policy prohibited “caps,” and Ms. Elauf – a Muslim – wore a headscarf as part of her understanding of the requirements of her religion.  Ms. Elauf’s interviewer knew that Ms. Elauf wore a headscarf and suspected – without knowing for sure – that the headscarf was worn as a religious practice.  Ultimately, Ms. Elauf was not hired, and the EEOC contended that the failure to hire her and accommodate her sincerely held religious belief discriminated against her in violation of Title VII.  The Tenth Circuit Court of Appeals granted summary judgment to Abercrombie, concluding that it couldn’t be liable because Elauf didn’t provide the employer with actual knowledge of her need for accommodation.

In taking up the appeal, the Supreme Court rejected Abercrombie’s argument that Ms. Elauf had to prove Abercrombie had actual knowledge of her need for a religious accommodation.  The Court noted that Title VII of the Civil Rights Act of 1964 does not include a knowledge component; it merely prohibits certain motives, regardless of the employer’s actual knowledge.  Therefore, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”   Ultimately, the Supreme Court sent the case back to the Tenth Circuit for consideration under the proper standard.

Importantly, in a footnote, the Court stated 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.”  Because, in this case, the record showed that Abercrombie at least suspected that Ms. Elauf wore a headscarf for religious reasons, the Court declined to decide the question of liability where the employer has no knowledge or suspicion that the individual’s practice is a religious one.  Therefore, it has not yet been decided whether an employer can be held liable for disparate treatment if it makes a decision based on an applicant’s need for a religious accommodation but the employer has no knowledge that the need arises from a religious belief.

In light of this case, employers may be in a bit of a tough position – not wanting to face lawsuits based either on their knowledge of or ignorance of an applicant’s religious beliefs and practices.  There is a fine line between eliciting information about an applicant’s religious beliefs for the purpose of determining whether any religious accommodations are needed – and eliciting information about an applicant’s religious beliefs for any other purpose, which could be considered religious discrimination.  Typically, you do not want to ask an applicant about their religious beliefs in a job interview, so how do you avoid a suit like the one Abercrombie faced?

Usually, a good way to approach this issue is similar to the way the issue of disability is handled during the application process. That is, don’t ask a job applicant about his or her religious beliefs and practices, just as you would not ask whether the applicant has a disability. Rather, focus on performance of job duties and fulfillment of job requirements. Provide job applicants with a list of job duties and requirements. Ask applicants whether they are unable to fulfill any of those duties or requirements. If they are unable, ask whether the reason is religious. If so, ask the applicant whether he or she would need an accommodation and what that might consist of. Confine your discussion with the applicant to the job’s duties and requirements and whether the applicant can fulfill those with a reasonable accommodation.

If you, as the employer, have any suspicion that the applicant may need an accommodation because of a religious belief, do not refuse to hire the applicant based solely on that knowledge or because an accommodation would be needed without first determining whether the accommodation would impose an undue hardship on your company. The same determination would need to be raised if you suspect that an existing employee may need such an accommodation.  In these situations, consulting with your attorney before making a decision is probably a good idea.

Although the question of whether employers may be liable in situations in which they have no actual knowledge that an accommodation is needed for religious reasons arguably remains up in the air after this case, it is best to take no chance of even accidentally refusing a religious accommodation.  Wearing a belt and suspenders involves first determining whether an accommodation is needed and, if so, finding out whether it is needed because of a religious belief.  Employers will need to be more proactive, based on this recent ruling, to ensure that they do not remain in the dark regarding applicants’ needs for religious accommodations while continuing to avoid any type of discrimination based on religious beliefs once known.