EEOC v. Abercrombie & Fitch: Adverse employment action based on suspicion of a need for a religious accommodation may violate Title VII

This week, the U.S. Supreme Court ruled in favor of the Equal Employment Opportunity Commission (EEOC) in a case at the intersection of religious accommodations and permitted hiring practices.     

In EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86 (S. Ct. June 1, 2015), the Court held that the Tenth Circuit erred in granting summary judgment for Abercrombie, finding that an employer may violate Title VII of the Civil Rights Act of 1964 if it refuses to hire an applicant on its suspicions that she would require a religious accommodation.

Factual Background

Abercrombie imposes a “look policy” on its employees. When this case was first filed, the look policy prohibited employees from wearing “caps,” which Abercrombie believed to be against its image. 

In 2008, Samantha Elauf, a 17-year-old practicing Muslim, applied to work at an Abercrombie store. In accordance with her religious practices, Elauf wore a headscarf to her interview. The interviewer, Heather Cooke, determined that Elauf was qualified for hire but was nevertheless instructed not to hire her because the district manager believed her headscarf would violate the look policy.

The EEOC filed suit on Elauf’s behalf, arguing that Abercrombie’s refusal to hire her violated Title VII. On the issue of liability, the district court granted summary judgment in favor of the EEOC. Abercrombie appealed the case to the Tenth Circuit, which reversed the district court and granted summary judgment in favor of Abercrombie. The case was then appealed to the Supreme Court.

Actual Knowledge Is Not Needed to Show Religious Discrimination

The issue before the Supreme Court was whether Title VII’s prohibition against religious discrimination in hiring applies only when an applicant has informed her potential employer of her need for an accommodation. Abercrombie argued that an applicant cannot show disparate treatment without first showing that the employer had actual knowledge of her need for an accommodation. The Court disagreed, however, holding that an applicant need only show that her need for an accommodation was a motivating factor in the employer’s decision.

The Court explained that “knowledge” and “motive” are two separate concepts. If an employer has no more than a mere suspicion that an applicant would require a religious accommodation, it still may violate Title VII if it is motivated to refuse to hire the applicant by a desire to avoid making such an accommodation.

An employer may not use an applicant’s religious practice — whether confirmed or simply suspected — as a factor in its employment decisions.

Further, this ruling reiterated that Title VII “gives [religious practices] favored treatment.” Therefore, even when an employer has an otherwise neutral “no headwear” policy, religious accommodations must still be afforded when such accommodations would not pose an undue hardship on the employer. 

Employer Takeaway 

An employer cannot take adverse action against a qualified candidate or employee based on a suspicion that he/she may need a religious accommodation. If an employer suspects a qualified candidate (or employee) needs a religious accommodation, the employer should engage in the interactive process to determine whether a reasonable accommodation can be made.