U.S. Supreme Court Finds Intentional Religious Discrimination Despite Applicant’s Failure To Request A Religious Accommodation From Prospective Employer

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U.S. Supreme Court Finds Intentional Religious Discrimination Despite Applicant’s Failure To Request A Religious Accommodation From Prospective Employer

June 5, 2015 

On June 1, 2015, the United States Supreme Court handed down its decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. In a majority opinion authored by Justice Scalia, the Court held that to prevail in a disparate treatment religious discrimination claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision – not that the employer actually had knowledge of the applicant’s need for an accommodation.

The Abercrombie case arose after Abercrombie & Fitch refused to hire Samantha Elauf, a practicing Muslim, because of a headscarf she wore during the interview process. Abercrombie interviewed Elauf and found her qualified for hire. However, Abercrombie did not offer her employment because it was concerned that her headscarf would conflict with the store’s “Look Policy” that was in effect at that time. That Look Policy prohibited employees from wearing caps and other headwear, regardless of whether they were being worn for religious reasons or other reasons. Significantly, Elauf did not specifically inform Abercrombie during her interview that she wore a headscarf for religious reasons; however, the manager who interviewed Elauf assumed that she wore the headscarf for religious reasons.

The EEOC filed a lawsuit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on religion. The District Court granted the EEOC summary judgment on the issue of liability, held a trial on damages, and awarded $20,000. The Tenth Circuit reversed and awarded Abercrombie summary judgment, ruling that ordinarily 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 her need for an accommodation. On appeal, the issue before the Supreme Court was whether a potential employer’s duty to provide a reasonable accommodation is triggered only when an applicant has informed the employer of her need for a religious accommodation.

Before the Supreme Court, Abercrombie argued that Elauf could not show “disparate treatment,” or intentional discrimination, without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation. The Supreme Court disagreed, holding that an applicant “need only show that his need for an accommodating was a motivating factor in the employer’s decision” not to hire the applicant (emphasis added). The Supreme Court highlighted the difference between the concepts of knowledge and motive. The Supreme Court found it significant that Title VII does not impose a knowledge requirement. Instead, the intentional discrimination provision in Title VII prohibits certain motives, regardless of the state of the actor’s knowledge. The Supreme Court acknowledged that a request for accommodation, or the employer’s certainty that a religious practice exists, may make it easier to infer motive, but ultimately concluded that such knowledge is not a necessary condition of liability.

Abercrombie also argued that application of a neutral policy cannot constitute intentional discrimination. The Supreme Court vaguely confirmed that this argument “may make sense in other contexts.” However, according to the Supreme Court, “Title VII doesn’t demand mere neutrality with regard to religious practices …Rather, it gives them favored treatment affirmatively obligating employers not to fail or refuse to hire or discharge any individual because of an individual’s religious practices.”

One troubling aspect to the Supreme Court’s decision is that it reserved judgment on the issue of whether, if an employer does not know of or suspect that an applicant’s or employee’s practice is religious in nature, it could still be held liable for religious discrimination. The Court determined that it was not necessary to reach that question because in this case, Abercrombie knew or at least suspected that Elauf’s headscarf was worn for religious reasons. However, Justice Alito’s concurring opinion and Justice Thomas’ dissenting opinion point out that it would not make sense for an employer to be held liable for taking an adverse action because of a religious practice if the employer does not know that the practice is religious. Unfortunately, employers will have to wait for future court decisions to clarify this unresolved question.

As a practical matter, the Supreme Court’s decision will likely make it more difficult for employers to ensure that they are complying with Title VII’s religious accommodation requirements. In the past, employers generally believed that they were under no obligation to provide a religious accommodation unless and until an applicant or employee explicitly requested a religious accommodation. Now, employers will have to more closely evaluate whether there are any religious accommodation issues being raised by an employee’s or applicant’s words, clothing, behavior, or other requests. If the employer suspects that there are, it may want to consult with employment counsel for guidance on how to approach these issues in a way that minimizes the risk of a discrimination claim. In addition, employers should make sure that their supervisors and managers receive the proper training on how to respond to an employee’s or applicant’s request for religious accommodation or even just a suspicion that an employee or applicant may require a religious accommodation.
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