June 10, 2015
On June 1, 2015, the United States Supreme Court made it easier to sue an employer for religious discrimination. In EEOC v. Abercrombie & Fitch Stores, Inc. (2015) 2015 WL 2464053, Samantha Elauf, a practicing Muslim who wears a headscarf for religious reasons, applied for a position with clothing retailer Abercrombie & Fitch. The Abercrombie store’s assistant manager interviewed Elauf and rated her qualified for employment. However, Abercrombie management determined Elauf’s headscarf, like other headwear, violated the store’s “Look Policy” and decided not to hire her.
The Equal Employment Opportunity Commission sued Abercrombie & Fitch on Elauf’s behalf, claiming its refusal to hire her violated Title VII of the Civil Rights Act of 1964. A federal district court in Oklahoma granted the EEOC summary judgment on the issue of liability, and awarded Elauf $20,000. The Tenth Circuit Court of Appeals reversed, concluding an employer cannot ordinarily be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) gives the employer actual notice of the need for an accommodation.
The Supreme Court overturned the Tenth Circuit’s decision and held job applicants in Title VII claims must establish only that the employer was motivated to not hire the applicant, at least in part, by the need for a religious accommodation.
Title VII makes it unlawful for an employer to fail or refuse to hire any individual, or otherwise to discriminate in employment, because of the individual’s religion, among other protected characteristics. (42 U.S.C. § 2000e-2(a).) Title VII defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate [a] religious observance or practice without undue hardship on the conduct of the employer’s business.” (42 U.S.C. §§ 2000e(j).)
Abercrombie’s primary argument was that an applicant cannot establish a violation of Title VII without first demonstrating the employer has actual knowledge of the applicant’s need for a religious accommodation. The Supreme Court disagreed.
The Court determined the phrase because of in the statute links the forbidden considerations to each of the verbs preceding it (i.e., the statute reads in simpler terms, “It shall be an unlawful employment practice for an employer … to fail or refuse to hire … any individual … because of such individual’s religion”). Therefore, an individual’s religious practice must not be a motivating factor in failing or refusing to hire. The Court found significant that the statute does not explicitly impose a knowledge requirement, as some antidiscrimination statutes do, so that the provision prohibits certain motives regardless of the employer’s knowledge. Thus, an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.
Abercrombie also argued its “Look Policy” was neutral because it did not allow headwear of any kind, religious or otherwise. The Court, however, concluded, “Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment.” Thus, while an employer may be entitled to a no-headwear policy as part of its dress code, when an applicant requires an accommodation as an aspect of religious practice, an employer does not escape Title VII liability for failure to hire by relying on an otherwise-neutral policy.
Whereas the Abercrombie Court focused on religious practices, California law goes even further than Title VII in requiring employers to make reasonable accommodations for employees’ religious beliefs, observances, and practices.
California fair employment regulations require employers to “make accommodation to the known religious creed of an applicant or employee unless the employer … can demonstrate that the accommodation is unreasonable because it would impose an undue hardship.” (2 Cal. Code Regs. § 11062.) Accommodations for religious reasons, like those for disabilities, may require departures from employer policies such as work schedules and dress code standards.
The reference in the California regulation to accommodation of “the known religious creed of an applicant or employee,” is not inconsistent with the Abercrombie decision. However, it does leave open the argument that an employer could not have made a decision because of religion if it could not have known from all appearances the religious creed of the applicant or employee. Employers are advised to consult with legal counsel when making personnel decisions that implicate employees’ or applicants’ exercise of religion.