The U.S. Supreme Court has ruled that an employer does not need “actual knowledge” of an applicant’s need for a religious accommodation in order to violate Title VII of the 1964 Civil Rights Act. Instead, the applicant “need only show that his need for an accommodation was a motivating factor in the employer’s decision.” EEOC v. Abercrombie & Fitch, No. 14-86 (June 1, 2015).
Background
Retail giant Abercrombie & Fitch maintains an employee dress code called the “Look Policy.” In addition to specifying the style of clothes employees are required to wear, the Look Policy forbids black clothing and caps, though the term “cap” is not defined. If an applicant needs an accommodation from its Look Policy, Abercrombie policy requires the interviewer to contact the Human Resources Department for approval.
In 2008, Samantha Elauf, a practicing Muslim, wore a hijab (a headscarf) in her interview. Elauf never mentioned her headscarf or a need for accommodation from the Look Policy. The interviewer also did not mention the headscarf, though she contacted her district manager, who told her to lower Elauf’s rating on the appearance section of the application, which lowered her overall score and prevented her from being hired.
The Equal Employment Opportunity Commission (EEOC) sued Abercrombie, claiming that the company discriminatorily refused to hire Elauf because of her headscarf. Abercrombie responded that Elauf had a duty to inform the interviewer that she required an accommodation from the Look Policy and that the headscarf was not the expression of a sincerely held religious belief.
The lower court ruled in favor of the EEOC but the Tenth Circuit Court of Appeals reversed, concluding that Abercrombie did not have “actual knowledge” of Elauf’s need for a religious accommodation and therefore couldn’t be liable for failing to offer it.
Supreme Court Sides with the EEOC
Justice Scalia’s majority opinion declared that the employer does not need “actual knowledge” of the applicant’s need for a religious accommodation in order to violate Title VII. Unlike the ADA, which requires accommodations for “known physical or mental limitations” (emphasis supplied), the Court noted that “Title VII contains no such limitation.” Instead, the key inquiry is the employer’s motives for the employment decision, and employers that suspect an applicant may need a religious accommodation violate Title VII when they act on that suspicion.
Even though actual knowledge is not required, the Court did say that some sort of knowledge (or at least a suspicion) that an accommodation is needed may be necessary to raise an inference of unlawful motive. According to the Court:
[I]t is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice.
Still, the Court concluded that Title VII requires more than mere “neutrality” regarding religious practices. Instead, Title VII affirmatively requires employers to refrain from adverse action based on applicant’s or employee’s religious practices.
Bottom Line
Job applicants need only show that a possible need for accommodation was a motivating factor in the employment decision, even if there was no actual knowledge that an accommodation was needed. Employers therefore should avoid even the appearance that a concern for religious accommodation motivated an adverse employment decision.