The Lowdown on the US Supreme Court Abercrombie Decision

Photo Credit: Mordy Steinfeld CC

Photo Credit: Mordy Steinfeld CC

In a decisive 8-1 ruling, the U.S. Supreme Court sided yesterday with the EEOC in the religious discrimination case of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14-86, Supreme Court of the United States (June 1, 2015).

In a Nutshell

Justice Antonin Scalia, writing for the majority, recognized that Title VII “prohibits a prospective employer from refusing to hire an applicant to avoid accommodating a religious practice that could be accommodated without undue hardship.” In sharpening the question, the Court zeroed in on this precise issue: “whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.”

Abercrombie had argued that an applicant cannot show disparate treatment without first showing that the employer had “actual knowledge” of the applicant’s need for accommodation. The Court rejected this argument, and instead held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” Specifically, the Court held that “the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

The Road to the Supreme Court

Abercrombie owns and operates several different lines of clothing stores, each adopting a distinct style. Consistent with its marketing plan, Abercrombie imposes a so-called “Look Policy” that governs all employees’ attire while at work. Samantha Elauf, a teen Muslim who wore a headscarf for religious reasons, applied for a position in an Abercrombie store. Ms. Elauf wore her headscarf during her job interview, but made no mention of her religion, or that she wore the headscarf for religious reasons, or that she would need any sort of accommodation from Abercrombie’s “Look Policy.” But it was undisputed that the person conducting the interview assumed that Ms. Elauf was Muslim and that she wore the headscarf for religious reasons. Moreover, it was undisputed that this influenced Abercrombie’s decision not to hire her, as one of Abercrombie’s district managers directed that Ms. Elauf not be hired for these reasons.

The district court sided with the EEOC, but the Tenth Circuit Court of Appeals reversed and ruled that summary judgment should have been granted to Abercrombie. The Tenth Circuit held that the burden is on the applicant to advise the employer of a religious practice that conflicts with a job requirement, because the applicant is uniquely qualified to know those personal religious beliefs and whether an accommodation is necessary. The Tenth Circuit rejected the EEOC’s argument that employers have a duty to attempt reasonable accommodation when notified of the conflict from any source.

The Supreme Court’s Decision

The Supreme Court concluded that the Tenth Circuit Court of Appeals had misinterpreted Title VII, specifically whether Title VII imposes a “knowledge requirement,” when the Tenth Circuit had ruled that ordinarily an employer cannot be liable under Title VII unless the job applicant (or an employee) provides the employer with actual knowledge of the need for an accommodation. Rejecting the “actual knowledge” test, the Supreme Court concluded that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision,” without regard to whether the applicant placed the employer on notice of the need for an accommodation.

Perhaps mindful of the confusion that might result from this decision, the Supreme Court did provide guidance on how “knowledge” and “motive are distinct concepts:

“An employer who has actual knowledge of a need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, 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.”

The Court acknowledged that if the applicant requested an accommodation, or the employer was certain that the applicant followed a practice that would require accommodation, it may be easier to infer motive, but held that neither is required for liability.

There may yet be more litigation on this issue of religious accommodation, because the Supreme Court declined to decide whether the motive requirement can be met without a showing that “the employer at least suspects that the practice in question is a religious practice.” Because Abercrombie suspected that Ms. Elauf wore the headscarf for religious reasons, it was unnecessary for the Supreme Court to reach this issue.

Take-Away for Employers

Employers should continue to avoid asking applicants about religion, or making assumptions based on stereotypes. But in light of the Abercrombie decision, an employer who has any reason to believe or suspect that accommodation may be necessary – whether or not disclosed by the job applicant – should consider engaging in an interactive dialogue with the applicant about an accommodation. The specific circumstances will vary depending on the employer’s work rules and the requirements for the position in question, but the ultimate questions will remain the same:

  • Is the applicant (or employee) able to comply with the work rule, or will an accommodation be necessary?
  • If an accommodation is necessary, is it a reasonable one, or would it impose an undue hardship on the employer?

As a practical matter, employers would be well advised to make certain that individuals on the front line of the hiring process – from interviewers to those making the ultimate hiring decisions – be apprised of the importance of not making stereotype-based assumptions during the hiring process, and of taking the necessary steps to avoid making hiring decisions based solely upon religious practices without first engaging in the accommodation process.


2018-02-28T20:58:35+00:00 June 2nd, 2015|Categories: Discrimination & Harassment, MCAD & EEOC, Thomas J. Gallitano|Tags: |0 Comments

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