On June 1, 2015 the U.S. Supreme Court ruled in the EEOC v. Abercrombie that case that the Equal Employment Opportunity Commission was not required to prove that a Muslim applicant for employment had requested that Abercrombie & Fitch accommodate her wearing of a headscarf in order to prove that she was denied employment based on religion in violation of Title VII. Evidence that the Company failed to hire her because it assumed (correctly) she would request such an accommodation was sufficient to prove that her religion was a motive for the decision.
Fact of the Case: An applicant for employment, a practicing Muslim, interviewed for a sales position with Abercrombie & Fitch wearing a headscarf. Abercrombie & Fitch at the time had a “Look” policy that dictated that sales employees wear clothing that projected the Company’s image. Among the prohibited items of clothing were “caps.” There was no discussion between the interviewer and the applicant about whether she required an accommodation for her religion in the form of being permitted to wear her headscarf.
The interviewer rated the applicant as “qualified to be hired” but after the interview, consulted with her District Manager to determine whether the headscarf would violate the Look policy. The interviewer believed the headscarf was worn as an expression of the applicant’s religion. The District Manager said it would, and the applicant was not offered a job. The EEOC brought suit on the applicant’s behalf, claiming that the denial of employment was intentional religious discrimination, and a jury found in her favor. A federal appellate court, however, overturned the verdict, ruling that unless there was proof that the employer had actual knowledge of a need for a religious accommodation, a Title VII violation could not be proven. Given that there was no discussion of the applicant’s religion or an accommodation, she could not prove actual knowledge.
The Court’s Ruling: The Supreme Court reversed. The Court majority held that if an employer refuses to hire an individual based on its belief that she will require a religious accommodation, and she actually would need one if hired, Title VII is violated. Proof of actual knowledge is not required. The Court reasoned that, unlike some anti-discrimination statutes, Title VII’s “intentional discrimination provision prohibits certain motives regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts.” The Court continued, “Thus, 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 Court also rejected the Company’s argument that a “neutral policy” that treats all applicants the same cannot constitute “intentional discrimination.” Noting that this might be true for other forms of discrimination, the Court observed that Title VII imposes affirmative obligations on employers to provide special accommodations to policies for religious reasons.
Writing separately, Justice Alito took up the question that the Court majority said would not be decided because it had not been briefed: whether it is a condition of liability that the employer know or suspect that the practice it refuses to accommodate is a religious practice. The Court majority had acknowledged it to be “arguable” that motive could not be established unless the employer at least suspected that the practice in question was religious. Justice Alito, however, would hold this to be the case: “an employer cannot be liable for taking an adverse action because of an employee’s religious practices unless the employer knows that the employee engages in the practice for religious reasons.”
Lessons Learned: The Court rejected the principle a generally applicable, neutral policy can never form the basis of a claim of intentional religious discrimination. Thus, employers that make employment decisions motivated by the belief that an individual’s religion will conflict with a company policy may be liable for intentional discrimination under Title VII, although the employer should still be able to avoid liability if it can establish that accommodating the individual’s religious practice would be an undue hardship. Yet, by leaving unanswered the question of whether an employer must know or at least suspect that a practice is religious to establish motive, the majority has created the potential for “mischief.” As Justice Alito pointed out, if knowledge is irrelevant then Abercrombie & Fitch would be liable to the applicant by refusing to hire her due to her headscarf even if it had absolutely no suspicion that she wore it for a religious purpose.
Does this mean that if a company does not hire an individual who says he cannot work Saturdays as required by company policy, the company is liable if the unstated reason for this refusal is the employee’s religious imperative to keep the Sabbath (the motive being a criteria that is based on religion)? We do not think this outcome is supported by the Court’s decision, but we expect this to become an issue of dispute, and one the Supreme Court may be called upon to decide in the future.
