An employer may not make an applicant’s religious practice—confirmed or otherwise—a factor in employment decisions.
On June 1, 2015, the U.S. Supreme Court ruled against retailer Abercrombie & Fitch in a high-profile religious discrimination case. In Equal Employment Opportunity Commission (EEOC) vs. Abercrombie & Fitch Stores, Inc. (Abercrombie), the Court sided with a Muslim woman who had been denied a job due to wearing a headscarf.
The Court held that, to prove a violation of federal law, an applicant must only show that the need for a religious accommodation was a motivating factor in the employer’s decision. Whether the employer had actual knowledge of the need for an accommodation is irrelevant. An employer may not make an applicant’s religious practice—confirmed or otherwise—a factor in employment decisions.
Samantha Elauf, a practicing Muslim woman, applied for employment at one of Abercrombie’s stores. Using Abercrombie’s ordinary assessment system, an assistant store manager determined that Elauf was eligible for hire.
Having noticed that Elauf wore a headscarf (hijab), the assistant manager sought clarification from the store and district managers on whether use of a headscarf conflicted with Abercrombie’s policy against wearing “caps.” The assistant manager informed her superiors that she believed Elauf wore the headscarf because of her faith. Abercrombie’s district manager instructed the assistant manager to not hire Elauf because wearing the headscarf would violate Abercrombie’s “look policy” as would all other headwear.
The EEOC sued Abercrombie on Elauf’s behalf, claiming that Abercrombie violated Title VII of the Civil Rights Act. The lower court awarded Elauf $20,000 in damages, but the Court of Appeals reversed the award after concluding that an employer cannot be liable for failing to accommodate a religious practice until the applicant actually informs the employer of the need for an accommodation.
Title VII Discrimination
Title VII prohibits prospective employers from discriminating against applicants to avoid providing accommodations that the employer could implement without undue hardship. Specifically, an employer cannot:
- Discriminate against an employee or job applicant, with respect to compensation, terms, conditions or privileges of employment, because of the individual’s race, color, religion, sex or national origin; or
- Limit, segregate or classify an employee or job applicant in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the employee’s status, because of the employee’s race, color, religion, sex or national origin.
Discrimination includes failing or refusing to hire a job applicant because of the reasons mentioned above.
The Supreme Court’s Decision
The question presented to the Supreme Court was whether the prohibition on discrimination applies only when an applicant has informed the employer of the need for an accommodation.
The Court disagreed with the Court of Appeals, stating that a job applicant does not need to prove that the employer had actual knowledge of a need for religious accommodation. Rather, a job applicant can prove a discrimination case if he or she can show that the need for accommodation was a motivating factor in the employer’s decision.
The Court noted that knowledge and motive are two separate concepts, and, that for a Title VII analysis, an employer’s motives regarding hiring practices are more relevant in determining whether discrimination has taken place. The Court reasoned that receiving a request of accommodation or having actual knowledge of a religious practice would make it easier to infer a motive, but that this knowledge is not a necessary condition to establish discrimination. To illustrate, the Court offered the following 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.”
The Court also rejected Abercrombie’s argument that its hiring practices were permissible because the policy against headgear was neutral and treated all employees wearing it for secular and religious reasons the same. The Court stated that religious practices must be accommodated and failing to do so will not be acceptable because the failure is due to an otherwise-neutral policy.
The Court reversed the ruling of the 10th Circuit and remanded the case for further review consistent with this opinion.
Impact on Employers
In general, the Court’s Abercrombie decision confirms current practice for many employers. Abercrombie has changed the policy that led to the case and now allows for headgear, including headscarves.
However, the ruling is significant for employers because it establishes a lower standard for job applicants to prove discrimination—motive instead of actual knowledge. In practical terms, this means that an employers should not base their hiring decisions on an assumption that an applicant may require some type of accommodation.
Employers should also consider whether they can accommodate job applicants’ requests without any undue hardship. Religious observances and practices do not have to be accommodated if an employer can demonstrate that it is unable to reasonably accommodate the observance or practice without undue hardship on the conduct of the business.
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