On June 1, 2015, the U.S. Supreme Court issued its long-awaited opinion in EEOC v. Abercrombie & Fitch Stores, Inc.  In an 8-1 decision written by Justice Antonin Scalia, the Court held that an employer may not refuse to hire an applicant if the employer was motivated by avoiding the need to accommodate a religious practice.

According to the Supreme Court, “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.”

Background & decision

The case arose when Samantha Elauf, then a teenager who wore a headscarf, or hijab, in observance of her Muslim faith, applied for a job at Abercrombie & Fitch.  Elauf was interviewed by Heather Cooke, the store’s assistant manager, and using Abercrombie’s ordinary system for evaluating applicants, Cooke gave Samantha a rating that qualified her for employment.  However, Cooke was concerned that Elauf’s headscarf would conflict with the store’s Look Policy.  Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap” under the company’s Look Policy.  When this yielded a “no” answer, Cooke turned to Randall Johnson, the district manager.  Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith.  Johnson told Cooke that Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.

The EEOC sued Abercrombie on Elauf’s behalf, claiming that its refusal to hire Elauf violated Title VII.  The district court ruled for Elauf, but the Tenth Circuit Court of Appeals ruled in favor of Abercrombie on appeal.  The Supreme Court ultimately reversed the court of appeals and ruled in favor of Elauf.  The key issue before the Court was whether an employer can be liable under Title VII for failing to accommodate a religious practice without actual knowledge of the need for accommodation.

The Supreme Court ultimately ruled that an employer violates Title VII’s religious accommodation requirements if the need for an accommodation was a “motivating factor” in its decision, regardless of whether the employer had actual knowledge of the religious practice or its need to be accommodated.

The Supreme Court explained as follows:

Motive and knowledge are separate concepts.  An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, 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.

The Court went on to provide the following example:

For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays.  If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

What does this mean for employers?

This decision further complicates the application evaluation process with respect to religious accommodations.  Not only must employers evaluate their ability to accommodate explicit religious accommodation requests, they must also foresee potential religious accommodation issues based on information elicited or observed during the application process.  Based on the Supreme Court’s ruling, Abercrombie should have elicited information from Elauf regarding her ability to comply with the Look Policy and, if necessary, engaged in the interactive process regarding a possible accommodation.

Notably, it is still not advisable to request information regarding an applicant’s religion during the interview process.  Instead, the discussion should focus on the essential functions and expectations of the job and the applicant’s ability to perform those functions with or without accommodation.