On June 1, 2015, The Supreme Court of the United States ruled in an 8-1 decision that a retailer clothing chain’s failure to hire a job applicant who wore a hijab, or headdress, to her job interview violates federal law prohibiting discrimination based upon religious belief.
The case originated in 2008 after clothing retailer Abercrombie & Fitch declined to hire then 17-year-old Samantha Elauf as a sales associate, or “model” in Abercrombie & Fitch parlance. At that time the company had a strict dress code, or “Look Policy,” that prohibited “caps” – a term not defined in the Policy – as well as other restrictions on dress and personal appearance. Abercrombie’s dress code complemented a certain style or “look” it desired to promote in its stores as a component of its retail brand.
During her job interview, Ms. Elauf did not tell the interviewer that she was a practicing Muslim or that she wore her hijab because of her faith. The assistant store manager conducting her interview did not inform Ms. Elauf about the company’s Look Policy or asked whether she would be willing or able to comply with the Policy if hired. Ms. Elauf interview rating qualified her to be hired, but the assistant store manager questioned whether Ms. Elauf’s hijab was a “cap” prohibited by the Look Policy. Without having actually discussed the hijab with Ms. Elauf, the manager simply assumed that Ms. Elauf was Muslim and that she would likely wear the hijab to work every day. Eventually, the company’s district manager determined that Ms. Elauf’s hijab was in fact a “cap” in violation of the Look Policy and directed the assistant manager not to hire her.
Ms. Elauf filed a complaint with the Equal Employment Opportunity Commission, which in turn filed suit against Abercrombie for violation of Ms. Elauf’s rights under Title VII of the Civil Rights Act of 1964, which requires employers to provide “reasonable accommodation” to employees (and prospective employees) whose religious beliefs are inconsistent with some aspect of company policy or procedure. The question before the Court was whether the employer owed Ms. Elauf “reasonable accommodation” based upon her religious beliefs and practices, even though she never asked for such an accommodation and never told the company she was Muslim.
The Court ruled that in fact the employer did owe Ms. Elauf such an accommodation, reversing a decision from the Tenth Circuit Court of Appeals that held that 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 the need for an accommodation. In the majority opinion authored by Justice Antonin Scalia, the Supreme Court held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision” not to hire the applicant to demonstrate a violation of Title VII.
The Abercrombie decision is a significant victory for religious advocacy groups who have long argued that individual employees should not be required to expressly request accommodation or to “outwardly display their religion through dress and grooming practices.” For employers and prospective employers, however, the decision further complicates an already challenging landscape of what constitutes “reasonable accommodation” in a particular situation. Indeed, Abercrombie suggests that an employer now must anticipate or make an assumption about an employee’s need for a particular accommodation, perhaps even based upon superficial or stereotypical dress, grooming or behavior and without actual notice or knowledge of the need for such an accommodation. In order to avoid potential Title VII liability for failure to offer “reasonable accommodation” to an employee or prospect based on perceived religious beliefs or practices, it may now be incumbent on employers to tread, ever so gingerly, on long-considered “taboo” conversation topics to ascertain whether accommodation is warranted.