On June 1, 2015, the Supreme Court of the United States, in EEOC v. Abercrombie & Fitch Stores, Inc., held that an employer need not have actual knowledge of the need for religious accommodation to be liable for a hiring decision if the employer refuses to accommodate a perceived need for a religious accommodation. The high court ruled that it is unlawful for an employer to refuse to hire an applicant if a “motivating factor” for the decision is the employer’s unwillingness to provide the applicant with an accommodation that the employer perceives the applicant needs for religious reasons.
The Court’s reasoning in Abercrombie may increase the risk of additional litigation based on a disparate treatment theory under the nation’s equal opportunity laws when the employer’s employment decision is based on blanket application of a neutral policy without accommodating specific facts or circumstances.
The Abercrombie case involved 17-year-old Samantha Elauf’s application to work as a salesperson in an Abercrombie store. Abercrombie, a retail clothier known for the specific styles of its clothing, maintained a “Look Policy” that dictated what employees may and may not wear at work to project Abercrombie’s brand image. At the time in question, Abercrombie’s Look Policy prohibited employees from wearing “caps” at work, but the term “caps” was not defined in the policy.
Elauf, a practicing Muslim, wore a hijab or headscarf to her interview. Although she wears a headscarf for religious reasons, Elauf did not volunteer that information during the interview, and Abercrombie did not ask. The assistant store manager who had interviewed Elauf gave her a rating high enough for hiring, but did not hire Elauf after consulting her district manager about whether the headscarf was a prohibited “cap.” The assistant store manager told the district manager that she believed Elauf wore the headscarf for religious reasons. The district manager replied that all headwear, including a religious headscarf, would violate the Look Policy and directed the assistant manager not to hire Elauf.
Elauf filed a religious discrimination charge with the EEOC, which in turn brought a failure to hire claim on Elauf’s behalf, arguing that Abercrombie’s refusal to hire Elauf violated Title VII on disparate treatment grounds. The trial court entered judgment following a jury verdict in favor of the EEOC. The Tenth Circuit Court of Appeals reversed and granted Abercrombie summary judgment, ruling that because Elauf never said she needed a religious accommodation to wear her headscarf, Abercrombie was not liable as it did not have actual knowledge of Elauf’s need for a religious accommodation. The Supreme Court reversed the Tenth Circuit decision and remanded the case, which will now go back to the trial court for further consideration.
The Supreme Court rejected Abercrombie’s primary argument that to prevail in a disparate treatment case, an applicant must show that the employer had “actual knowledge” of the applicant’s need for a religious accommodation. Writing for the 8-1 majority, Justice Scalia said, “An applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”
Declaring that the analysis is “straightforward,” the majority stated the “rule for disparate-treatment claims based on a failure to accommodate a religious practice” is that “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.
Future litigation may center on what the words “or otherwise” mean, especially as litigants attempt to show the real motive of an employer’s decision when the employer did not have “actual” or “confirmed” knowledge. As employers grapple with the import of the Abercrombie decision, prudent employers should consider the following:
- Facially neutral dress codes and other facially neutral employment policies have always been vulnerable to attack if they have a discriminatory impact on a particular protected class when they are applied in the workplace. The Abercrombie decision heightens awareness of how such policies may signal an “intentional discrimination” claim in a particular case. The prudent employer will remember that it is not enough to apply its policies neutrally and uniformly; in some circumstances, an employer may be required to make a religious or other accommodation to avoid an intentional discrimination claim.
- Proper training of managerial employees was always important, but Abercrombie highlights the need to ensure managers are well-trained and know how to issue spot. The employer’s managers need not only to know the employer’s policies, but also to understand the hazards of rigidly applying a policy without analyzing the potential unlawful effect of that policy’s application. The majority warned that “Title VII requires otherwise-neutral policies to give way to the need for an accommodation.” Training managerial employees for these situations is crucial.
- As always, smart and defensible decisions and good documentation are key in defending against employment discrimination claims. The employer’s decisions should be based solely on nondiscriminatory reasons, and the reasons should be legitimate, documented, and supported in the employer’s records.
- At times, employment decisions involve difficult judgment calls, and an employer may feel like it is between a rock and a hard place when making its decision. Although the EEOC discourages an employer from asking applicants about their religious beliefs and practices, here, Abercrombie’s manager asked no religious questions, and yet Abercrombie could face liability if the applicant’s religious practice was a motivating factor in the hiring decision. Abercrombie underscores the importance of getting sound legal advice when analyzing a situation before making a decision that could have significant legal consequences.
- It will be important for employers to stay abreast of subsequent case law that applies the Abercrombie Abercrombie may be a relatively brief and straightforward majority decision, but it raises a number of questions that will only be answered by future litigation. Moreover, it can be anticipated that the EEOC and plaintiff’s lawyers will advocate for broader application of the concepts in Abercrombie to other areas of discrimination law.