United States: Employer's Motive, Not Confirmed Knowledge Of Accommodation Need, Is Basis Of Religious Accommodation Violation

Federal anti-discrimination laws ("Title VII") prohibit an employer from refusing to hire a candidate to avoid accommodating a suspected, but unconfirmed religious practice, according to a recent United States Supreme Court decision.

In EEOC v. Abercrombie & Fitch Stores, Inc., Samantha Elauf applied and interviewed for an open position with a Tulsa, Oklahoma Abercrombie & Fitch store. Based on the assistant manager's rating, Elauf qualified to be hired. The assistant manager, however, was concerned that Elauf's headscarf would run afoul of Abercrombie's "Look Policy," which prohibited "caps" as too casual or informal. Elauf and the store manager did not discuss the headscarf or whether wearing it reflected a religious practice. Neither did they discuss the Look Policy or whether the situation warranted an accommodation. The assistant manager sought guidance from the store manager and then the district manager, inquiring whether the headscarf was a forbidden "cap" and informing them that she believed Elauf wore the headscarf because of her faith. The district manager confirmed the headscarf (and any other headwear whether religious or otherwise) would violate the Look Policy and directed the assistant manager not to hire Elauf.

Elauf, who is Muslim and wears the headscarf for religious reasons, filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), which sued Abercrombie for violating Title VII. The EEOC claimed Abercrombie suspected Elauf wore the headscarf for religious reasons and unlawfully refused to hire her to avoid accommodating her religious practice. The district court agreed, granting summary judgment to the EEOC and awarding $20,000 to Elauf, who had since found a better paying job.

On appeal, the federal Court of Appeals for the Tenth Circuit (covering, among other states, Oklahoma and Colorado) reversed, concluding an employer is not liable for failing to provide a religious accommodation until the applicant notifies the employer—i.e., the employer has actual notice—of the need for the accommodation. The Tenth Circuit awarded summary judgment to Abercrombie, and the EEOC sought review.

The United States Supreme Court rejected the Tenth Circuit's holding. Citing Title VII's prohibition on taking action "because of" religion, the Court enunciated a "straightforward" rule: "An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions." The Court distinguished an employer's motive from knowledge, finding the employer's motive to be the central inquiry for a discrimination claim. Thus, to proceed on a claim, "an applicant need only show that his need for an accommodation was a motivating factor in the employer's decision." Here, the EEOC had met this standard.

The Court further recognized that Title VII demands more than "mere neutrality" in considering religious practices. Rather, it requires "otherwise-neutral policies to give way to the need for an accommodation." Here, although Abercrombie's Look Policy was facially neutral, Title VII required Abercrombie to affirmatively provide an accommodation for Elauf's religious practices.

The decision left open several important issues, including: (1) whether there is a knowledge component of the motive requirement since an employer cannot be motivated by something it does not know or suspect and (2) the interplay of an employer's undue hardship defense. On the latter point, all accommodations (whether of religious practices or otherwise) are subject to a reasonableness standard and an employer's undue hardship defense, neither of which are abrogated by this decision.

Still, at a time when employers are emphasizing diversity and inclusion in the workplace, the decision provides a timely reminder of the interplay of religion and workplace practices. Maintaining a workplace that is not only legally compliant but also inclusive requires intentional planning, typically including implementation of appropriate policies or practices and, most importantly, manager training to ensure consistent application of those policies and practices.

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