On Monday, June 1, 2015, the United States Supreme Court reversed a judgment of the United States Court of Appeals for the Tenth Circuit which had granted Abercrombie & Fitch (“Abercrombie”) summary judgment in a religious accommodation case brought by a job applicant who wore a headscarf (a hijab) to an interview, but did not mention her religion or request an exception to Abercrombie’s dress code.  The Court’s 8-1 decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. rejected the Tenth Circuit’s holding that, to prove discrimination under Title VII of the Civil Rights Act (“Title VII”), it is an applicant’s burden to advise an employer of a religious practice necessitating accommodation.  Instead, the Court found that a job applicant need only demonstrate that a prospective employer’s desire to avoid providing a religious accommodation was a motivating factor in its decision not to hire, not that the employer actually knew of the need for an accommodation.   

The Facts

In 2008, Samantha Elauf, a practicing Muslim who wears a headscarf as part of her religious practice, applied for a sales floor position at an Abercrombie retail store in Oklahoma.  During Elauf’s interview, to which she wore her headscarf, Elauf did not mention the fact that she was Muslim, discuss the headscarf, or indicate that she would need an accommodation from Abercrombie’s “Look Policy,” which prohibited employees from wearing “caps.”  While the interviewer gave Elauf a rating that qualified her for hire, she was concerned that Elauf’s headscarf was a forbidden “cap” under the Look Policy.  The interviewer then sought guidance from an Abercrombie district manager and told him that she believed Elauf wore the headscarf because of her faith.  The district manager concluded that the headscarf violated Abercrombie’s “Look Policy” and directed that Elauf not be hired.

Analysis

The EEOC sued Abercrombie on Elauf’s behalf and initially obtained a $20,000 summary judgment from the district court.  The Tenth Circuit reversed, holding that, because religion is an inherently individual matter, Elauf was required to advise Abercrombie that her religious practice conflicted with a job requirement and that she would need an accommodation.  In other words, according to the Tenth Circuit, an employer cannot be liable under Title VII for failing to accommodate a religious practice until the job applicant provides the employer with actual knowledge of the need for an accommodation.

The Supreme Court reversed, holding that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”  In reaching this conclusion, the Court explained that, while some antidiscrimination statutes impose a knowledge requirement (such as the Americans with Disabilities Act, which defines discrimination to include an employer’s failure to make a reasonable accommodation to the “known” physical or mental limitations of an applicant), Title VII contains no such limitation.  Rather Title VII’s intentional discrimination provision “prohibits certain motives.”  Accordingly, “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.”  In sum, “the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Conclusion

Ultimately, the Supreme Court’s decision does not impose a new duty on employers.  Rather, it clarifies the standard for proving discrimination in a religious accommodation case in which no request for an accommodation was actually made.  Specifically, an employer need not have actual knowledge of a potential religious conflict for it to be found liable for failing to accommodate an applicant.  Rather, an applicant only has to show that the employer’s decision not to hire was motivated by a desire to avoid providing an accommodation, irrespective of whether the employer knew, or simply suspected, that such an accommodation would be necessary.

In light of the Abercrombie decision, employers should consider the following:

• Train hiring managers and interviewers. Hiring managers and interviewers should be aware of the requirement to provide religious accommodations and, therefore, should think of the need for religious accommodations – whether known or suspected – as irrelevant (absent an undue hardship) in the hiring process, much like an applicant’s race or gender.

• During the interview. Interviewers should not ask applicants about their religion.  However, they can ask whether or not the applicant will be able to comply with certain key requirements of the position.  If not, the interviewer should simply ask “Why not?”  If the applicant responds that they have a conflicting religious practice, the interviewer can inquire as to what type of accommodation would be needed and consult with human resources thereafter.

• Documentation.  Employers should document the outcome of an applicant’s accommodation request.   If an accommodation is provided, the precise nature and extent of the accommodation should be memorialized.  If an accommodation is not provided, the employer should document the legitimate business reason(s) why a religious practice could not be accommodated.