Supreme Court: Title VII Protects Applicant Who Did Not Inform Abercrombie of Need for Headscarf Religious Accommodation

Practical Law Legal Update 3-615-4805 (Approx. 7 pages)

Supreme Court: Title VII Protects Applicant Who Did Not Inform Abercrombie of Need for Headscarf Religious Accommodation

by Practical Law Labor & Employment

Background

Samantha Elauf, a practicing Muslim, applied for a position in an Abercrombie retail store. Consistent with her religion's requirements, Elauf wears a headscarf. Assistant manager, Heather Cooke interviewed Elauf and rated her as qualified to be hired. However, Abercrombie imposes a Look Policy prohibiting "caps," a term that is not defined in the policy. Cooke, concerned that Elauf's headscarf would conflict with the Look Policy, consulted store manager guidance. When she failed to find an answer, she asked her district manager Randall Johnson, explaining that she believed Elauf wore the headscarf for her faith. Johnson told Cooke that Elauf's headscarf (and all other religious or non-religious headwear) would violate the Look Policy. He directed Cooke not to hire Elauf.

The EEOC sued on Elauf's behalf, claiming that Abercrombie's refusal to hire Elauf violated Title VII. The following events then occurred:

The District Court granted the EEOC summary judgment on the issue of liability, held a trial on damages, and awarded Elauf $20,000 in damages (E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 798 F. Supp. 2d 1272 (N.D. Okla. 2011)).
The Tenth Circuit reversed and awarded Abercrombie summary judgment, concluding that ordinarily an employer cannot be liable under Title VII for failure to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation (E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 2013)). (For more information about the Tenth Circuit decision, see Legal Update, Tenth Circuit Commands Explicit Notice for Religious Accommodation Claims.)
The Supreme Court granted certiorari (E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 44, 189 L. Ed. 2d 897 (2014)).

Outcome

The Supreme Court, in an 8-to-1 decision (Justice Thomas dissented in part), reversed the Tenth Circuit's grant of summary judgment and remanded, holding that an applicant seeking to prove a disparate treatment claim under Title VII need only 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 his religious practice.

The Supreme Court noted that:

It is significant that the intentional discrimination provision of Title VII does not impose a knowledge requirement (42 U.S.C. § 2000e–2(a)(1)). Instead, it prohibits certain motives, regardless of the employer's knowledge. Motive and knowledge are separate concepts. For example, an employer with actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. However, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
There is a straightforward rule for disparate treatment claims based on a failure to accommodate a religious practice. The rule is that an employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions.
Abercrombie's argument that the Supreme Court should adopt the Tenth Circuit's burden allocation rule requiring the employer to have actual knowledge of a conflict between an applicant's religious practice and a work policy is problematic because it asks the court to add language to the law to produce a desired result. Title VII's disparate treatment provision does not impose a knowledge requirement. It prohibits actions taken with the motive of avoiding the need for accommodation of a religious practice. A request for accommodation, or the employer's certainty that the religious practice exists, may make it easier to infer motive, but is not a necessary condition of liability.
Abercrombie's alternative argument that a claim based on a failure to accommodate an applicant's religious practice must be raised as a disparate impact claim, not a disparate treatment claim, is incorrect because Title VII defines religion as "includ[ing] all aspects of religious observance and practice, as well as belief (42 U.S.C. § 2000e(j))." Therefore, religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated.
Abercrombie's argument that a neutral policy cannot constitute "intentional discrimination" fails because Title VII requires otherwise neutral policies to give way to the need for an accommodation. An employer is entitled to maintain a neutral policy, but if an applicant requires an accommodation as an aspect of religious practice, it is no defense that the subsequent failure to hire was due to an otherwise neutral policy.

Practical Implications

In this decision, the Supreme Court makes clear that even suspicions or assumptions about religious practices may trigger Title VII liability. Employers are advised to:

Examine their dress code and appearance policies, especially those that impact employees who dress a certain way due to their religious practices.
Establish a religious accommodation policy, and advise and train employees on the procedures for requesting and providing accommodations.
Train managers on how to handle an applicant or employee whose religious beliefs (whether observed or assumed by the manager or actually articulated by the applicant or employee) may conflict with a workplace policy or require an accommodation.

Supreme Court: Title VII Protects Applicant Who Did Not Inform Abercrombie of Need for Headscarf Religious Accommodation | Practical Law