Hunton Employment & Labor Perspectives

The Supreme Court recently held in EEOC v. Abercrombie & Fitch Stores, Inc. that Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, even where the applicant has not informed the employer of his need for an accommodation.

Background

Abercrombie & Fitch has a Look Policy governing its employees’ dress.  That policy prohibits “caps.”  Samantha Elauf, a practicing Muslim who wears a headscarf, applied for a store position and was interviewed by an assistant manager.  The assistant manager gave Elauf a rating that qualified her for the job, but she consulted other managers about whether the headscarf was a prohibited “cap.”  The assistant manager indicated that she believed Elauf wore her headscarf because of her faith, and the district manager said a headscarf—whether worn for religious reasons or not—would violate the Look Policy.  He directed the assistant manager not to hire Elauf.

The EEOC sued Abercrombie on Elauf’s behalf, claiming that its refusal to hire her violated Title VII.  The District Court granted the EEOC summary judgment as to liability, and the Tenth Circuit reversed.  It concluded that ordinarily, an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant / employee provides the employer with actual knowledge of his need for an accommodation.

The Court’s Opinion

The case then went to the Supreme Court.  Before the Supreme Court, Abercrombie argued that an applicant cannot show disparate treatment without first showing that the employer has actual knowledge of the need for an accommodation.

In an opinion written by Justice Scalia, the Court rejected that argument and held that an applicant need only show that his need for an accommodation was “a motivating factor” in the employer’s decision.  Unlike the Americans with Disabilities Act, Title VII does not impose a knowledge requirement.  An employer that has actual knowledge of a need for a religious accommodate does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not its motive.  Conversely, an employer that acts with the motive of avoiding accommodation may violate Title VII even if it has no more than an unsubstantiated suspicion that accommodation would be needed.  While a request for accommodation, or the employer’s certainty that a religious practice exists, may make it easier to infer motive, they are not necessary conditions of liability.  The Court noted in a footnote 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,” but found that it would be inappropriate to resolve that point because it had not been briefed or argued.  The Court ultimately concluded that “Title VII does not demand mere neutrality with regard to religious practices.  Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual’s ‘religious observance and practice.’”  An otherwise neutral (and permissible) policy must give way to the need for an accommodation.

Justice Thomas opined in dissent that mere application of a neutral policy cannot constitute intentional discrimination.  Because Abercrombie simply refused to create an exception to its neutral Look Policy for Elauf’s religious practice, it did not treat religious practices less favorably than similar secular practices.  Application of a neutral policy that affects those who wear headscarves more harshly is a classic case of an alleged disparate impact, but Justice Thomas argued that receiving the same treatment as any other applicant who appeared unable to comply with the Look Policy cannot be disparate treatment.  Justice Thomas also noted a concern with the majority’s footnote leaving open the possibility that an employer could violate Title VII without even suspecting that a practice is a religious one: “Because of such individual’s religious practice” could either prohibit taking an action because of the religious nature of an employee’s particular practice, or it could prohibit taking an action because of an employee’s practice that just happens to be religious.  If the latter, the law would punish employers that have no discriminatory motive, an idea that is at odds with the concept of intentional discrimination.

Impact on Employers

In light of the Court’s holding, employers must reevaluate their hiring.  The focus in making hiring decisions should be on objective factors and job duties.  However, before an employer refuses to hire (or decides to fire) an applicant or employee on grounds of a neutral policy, the employer should analyze whether the noncompliant practice could be a religious one that could be accommodated, even where the applicant has not expressed a need for an accommodation.