Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from, among other things, refusing to hire an applicant because of his or her
religion or religious practice. As a general rule, employers must reasonably accommodate an applicant’s religion (and religious practices) unless such
accommodation would cause an undue hardship on the business.
The question posed to the Supreme Court of the United States in EEOC v. Abercrombie & Fitch Stores, Inc. is whether these rules apply if the
applicant never informs the employer of her need for an accommodation. Or, put another way, may an employer make employment decisions motivated by its
unsubstantiated suspicion that the applicant may need a religious accommodation, if hired?
The Abercrombie case arose out of Samantha Elauf’s application for employment and interview with the clothing retailer, Abercrombie & Fitch
Stores, Inc. Ms. Elauf, a practicing Muslim, attended her interview dressed in a headscarf. Ms. Elauf did not inform the Abercrombie interviewer that she
wore her headscarf for religious purposes. However, the interviewer suspected that this was the case.
The interviewer found that Ms. Elauf was qualified for the position but confirmed that Ms. Elauf’s headscarf conflicted with the company’s policy barring
employees from wearing caps. After Abercrombie declined Ms. Elauf’s application for employment, she sued, alleging religious discrimination.
Supreme Court Holding
In Abercrombie, the Supreme Court was asked whether Title VII prohibits a prospective employer’s decision not to hire an applicant in order to avoid
accommodating an applicant’s religion, even when the applicant has not informed the employer of a need for such accommodation.
The Court first noted that an applicant may make a prima facie case of discrimination by showing that (i) the employer did not hire the applicant, (ii) the
applicant engaged in religious practices, and (iii) the employer’s decision was motivated by the applicant’s religion.
The Court then found that an employer’s motivation to avoid accommodating an applicant’s religion does not necessarily have to come from an applicant’s
request for accommodation. In doing so, the Court noted that Title VII does not have a knowledge requirement, unlike other employment discrimination
statutes such as the Americans with Disabilities Act. This, the Court explained, signaled Congress’s intent to treat the statutes differently and
prohibited the Court from writing a knowledge requirement into Title VII. Accordingly, the Court found that “an employer who acts with motive of avoiding
accommodation may violate Title VII even if [it] has no more than an unsubstantiated suspicion that accommodation would be needed.” Justice Alito, in a
concurring opinion, disagreed with the majority, stating that he “would hold that an employee cannot be held liable for taking an adverse action because of
an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.”
Significance for Employers
is an important decision for employers, as it makes clear that an applicant need not voice a desire for a religious accommodation in order to trigger an
employer’s Title VII obligations. Employers must train interviewers and managers not only to accommodate known religious practices, but also to avoid
making employment decisions based on an applicant’s or employee’s suspected need for an accommodation. The Court also clarified that the application
of a neutral policy is no excuse for not accommodating a religious practice. Indeed, according to the Court, an employer’s otherwise neutral policies must
“give way” to an applicant’s need for an accommodation.
For a copy of the Abercrombie opinion,
For our previous article on accommodating religious dress and grooming practices in the workplace, click here.
For questions regarding accommodating religious practices or any other employment law related issue, please contact the authors or any other member of the
firm’s labor and employment group.