June 15, 2015
On June 1, 2015, the United States Supreme Court held that the need for an accommodation of a religious practice cannot factor into employment decisions under Title VII of the Civil Rights Act of 1964 (“Title VII”), regardless of whether the need for accommodation was confirmed by the employee or merely suspected by the employer. EEOC v. Abercrombie & Fitch Stores, Inc. (2015) 135 S.Ct. 2028. The Court further confirmed that employers may not rely on facially-neutral company policies to circumvent their obligation to accommodate religious practices under Title VII.
Abercrombie & Fitch operates several popular clothing store lines, each with its own distinct style and image. To maintain the image the company sought to project for each store, Abercrombie & Fitch imposed a “Look Policy.” The Look Policy, among other things, prohibited employees from wearing “caps” or other headware.
Samantha Elauf (“Elauf”), a practicing Muslim, applied for a position in an Abercrombie & Fitch store and received a rating that qualified her to be hired. An assistant manager for the store however expressed concerns that Elauf’s headscarf would conflict with the store’s Look Policy. The assistant manager informed the district manager that she believed Elauf wore her headscarf because of her religious faith. The district manager determined that Elauf’s headscarf would violate the Look Policy, as would any non-religious headwear, and directed the assistant manager not to hire Elauf.
The EEOC sued Abercrombie & Fitch on Elauf’s behalf for religious discrimination in violation of Title VII. The District Court in Oklahoma granted the EEOC’s motion for summary judgment on the issue of liability and held a trial on damages.
The Tenth Circuit Court of Appeals reversed the District Court’s decision and awarded summary judgment in favor of Abercrombie & Fitch. The Tenth Circuit held that an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant or employee provides the employer with “actual” knowledge of his or her need for an accommodation.
The Supreme Court reversed the Tenth Circuit and held that Title VII only requires an applicant or employee to show that the need for accommodation was a motivating factor in the employer’s decision. The Court refused to impose a “knowledge” requirement to prevail on a religious discrimination claim because Title VII does not expressly state that such a requirement is necessary to prove liability. Employers therefore may be liable for religious discrimination if they suspect that an accommodation may be necessary, and the desire to avoid the prospective accommodation is a motivating factor in an employment decision.
In a footnote, the Court acknowledged that the motive requirement may not be met unless the employer at least suspects that the practice in question is a religious practice. The Court however, declined to decide this issue because Abercrombie & Fitch acknowledged that it knew, or at least suspected, that the scarf was worn for religious reasons. Therefore, even though “knowledge” of a religious practice is not an essential element of a religious discrimination claim, it appears that this issue will continue to be litigated in situations where the religious practice or need for accommodation is not obvious.
To the relief of employers, the Court’s opinion further provides that religious discrimination claims should be treated differently from disability discrimination claims, which do require knowledge of a disability and request for an accommodation to impose liability on an employer. As such, this decision should not impact other types of discrimination claims for the time being.
Finally, the Court rejected Abercrombie & Fitch’s argument that a neutral policy cannot constitute “intentional discrimination.” Although the Court recognized that employers are entitled as a matter of ordinary practice to impose dress policies in the workplace, those policies must “give way” to needs for religious accommodation under Title VII.
How does this decision affect employers?
The practical effect of this decision may not be significant for employers because it is well-established that Title VII and the California Fair Employment and Housing Act (“FEHA”) prohibit discrimination on the basis of religion and require employers to reasonably accommodate religious beliefs and practices. However, this case is a strong reminder that the duty to accommodate the religious practices of applicants and employees should not be taken lightly. Title VII and the FEHA require employers to reasonably accommodate the religious practice of all applicants and employees, even when the religious practice conflicts with company policy or image.
This decision further confirms that employers cannot shield themselves from liability on the basis that an applicant or employee did not explicitly request a religious accommodation. Instead, an applicant or employee may assert a claim under Title VII for religious discrimination when an employer merely suspects that a religious accommodation will be necessary and makes an employment decision based on its desire to avoid the prospective accommodation.