On June 2, 2015, in EEOC v. Abercrombie & Fitch Stores, Inc., the US Supreme Court held that an applicant seeking to prove a disparate treatment claim under Title VII of the Civil Rights Act of 1964 (Title VII) only must show that the need for a religious accommodation was a motivating factor in the prospective employer's adverse decision and not that the employer had actual knowledge of the applicant's need for an accommodation based on her religious practice (135 S. Ct. 2028 (2015)). In an 8-to-1 decision (Justice Thomas dissented in part), the Court reversed the US Court of Appeals for the Tenth Circuit's grant of summary judgment and remanded the case for further consideration. For more details about the decision, see Legal Update, Supreme Court: Title VII Protects Applicant Who Did Not Inform Abercrombie of Need for Headscarf Religious Accommodation.

Practical Law asked George L. Washington, Jr. of Orange Business Services to discuss the implications of this decision and its likely impact on employers. George is the Head of Litigation for the Americas and advises senior management globally on a broad range of issues, including investigations, ethics, compliance obligations and corporate security matters.

Most notably, the Abercrombie decision clarified whether an applicant who claims that an employer violated Title VII by failing to accommodate a religious practice must first show that the applicant actually notified the employer of the need for an accommodation. Circuit courts of appeal had been split on this issue. Some circuits (notably the Eighth, Ninth and Eleventh Circuits) held that an applicant need only show that an employer had sufficient information to be aware of a conflict between the applicant's religious practice and a work policy, regardless of where the employer obtained that information. In contrast, the Tenth Circuit's ruling in Abercrombie imposed a higher burden. It held that the applicant had to show that she informed the employer that she engaged in a particular practice for religious reasons and that an accommodation was needed because of a conflict between the practice and a work policy.

The Supreme Court rejected the Tenth Circuit's view and held that an applicant is not required to show that an employer had "actual knowledge" of the need for an accommodation in order to establish a prima facie case for failure to accommodate a religious practice. Instead, because Title VII proscribes employment actions taken "because of" an individual's religion and because Title VII does not impose a knowledge requirement (unlike the Americans with Disabilities Act (ADA), which requires employers to reasonably accommodate the "known" physical or mental limitations of an applicant), the Court concluded that an applicant only has to show that the need for an accommodation was a "motivating factor" in the employer's decision. Thus, an employer that merely suspects that an applicant may need an accommodation for a religious practice may violate Title VII if avoiding the potential accommodation is a factor in the employer's decision not to hire the applicant.

In explaining its "motivating factor" holding, the Court emphasized that "motive and knowledge are separate concepts" and that the disparate treatment provision of Title VII is aimed at prohibiting certain motives, regardless of an employer's knowledge. This observation is key for employers in understanding the significance of Abercrombie because it underscores that liability hinges not on what an employer knew about the need for an accommodation, but instead on whether the employer acted on a desire to avoid the accommodation in reaching its employment decision. As the Court explained, an employer who actually knows that an applicant needs an accommodation and who declines to hire the applicant for reasons unrelated to avoiding the accommodation does not violate Title VII because the employer did not act upon a proscribed motive.

The Court provided further guidance for employers by succinctly stating the "straightforward" rule for disparate treatment claims alleging a failure to accommodate a religious practice: an employer may not allow an applicant's religious practice to be a factor in the employer's employment decisions. As is true under Title VII for race, color, sex or national origin, an employer must treat an applicant's religious practice as a nonfactor in employment decisions. This is the case regardless of whether the employer in fact knows that the applicant engages in the religious practice or only suspects that she does.

Abercrombie urged the Court to adopt the Tenth Circuit's burden-allocation rule making an employer's actual knowledge of a conflict between an applicant's religious practice and a work rule a necessary element of a failure-to-accommodate claim. The Court declined to do so because Title VII's disparate treatment provision does not contain a knowledge requirement and because courts are not empowered to add words to the law to achieve a desired result.

Yes. First, the Court rejected Abercrombie's argument that an applicant can only bring a claim for failure to accommodate a religious practice as a disparate impact claim and never as a disparate treatment claim. The Court noted that Title VII's definition of "religion" is not limited to "belief"; it also includes "all aspects of religious observance and practice" (42 U.S.C. § 2000e(j)). Therefore, religious practice is included in the protections that "religion" receives under the disparate treatment provision, and claims for failure to accommodate religious practice can proceed under that provision.

Second, the Court disagreed with the notion that a neutral employer policy (for instance, one that treats religious practices no less favorably than other practices) cannot constitute intentional discrimination under Title VII. Instead, the Court explained, the affirmative duty to accommodate religious practices under Title VII requires employers to give religious practices favored treatment in relation to otherwise neutral policies. Thus, while employers are entitled to maintain policies such as those regulating appearance and dress, the fact that such policies are neutral towards religious practice will not excuse a failure to comply with Title VII's disparate treatment provision. Such neutral policies must give way to the need for an accommodation.

The Abercrombie decision does not impact an employer's ability to maintain dress codes and appearance standards that are based on legitimate business reasons. Maintaining such policies and standards serves important business objectives for many employers, and nothing in Abercrombie challenges an employer's entitlement to continue these practices.

However, in light of the Court's admonition that, absent undue hardship, such policies must defer to the need for religious accommodations, employers should proactively examine their policies to understand whether exceptions can be made for individuals whose sincerely held religious beliefs require them to dress, groom themselves or otherwise maintain their appearance in a manner that would violate the policies. While decisions about exceptions should be made on a case-by-case basis, employers should identify which business objectives are served by the policies and what burdens would be imposed by an exception. Some employers may find that undue hardship would clearly result from an exception (as, for example, for dress codes that promote employee security, health and safety), while others may conclude that the burden created by a policy deviation may only be de minimus. Either way, assessing the objectives of dress codes and appearance standards and the effects of deviating from them before requests for religious accommodations arise will enable employers to base accommodation decisions on objective criteria and to apply such criteria consistently across requests.

Yes. Title VII's disparate treatment provision makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion" (42 U.S.C. § 2000e-2(a)(1)). Thus, the provision expressly protects both applicants and current employees from discrimination based on religion. The particular facts of Abercrombie involved an applicant who needed a religious accommodation, but employers should be aware that the principles discussed in Abercrombie apply equally to current employees.

Ultimately, the Abercrombie decision stands for a common-sense proposition: an employer risks Title VII liability if its employment decision is motivated by a desire to avoid the duty to accommodate an individual's religious practice, regardless of whether the employer assumes, suspects or in fact knows that the individual engages in a religious practice. To minimize the risk of liability, employers should consider: