Yesterday, in EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015), the Supreme Court of the United States held that an applicant does not need to inform an employer of her need for a religious accommodation in order to seek protection under Title VII.
In the case, Abercrombie & Fitch Stores, Inc. (“Abercrombie” or the “Company”) refused to hire Samantha Elauf because the black headscarf she wore to her interview was inconsistent with its “Look Policy,” which at the time, prohibited employees from wearing caps or the color black while working. The U.S. Equal Employment Opportunity Commission (“EEOC”) brought suit on behalf of Ms. Elauf, claiming Abercrombie violated Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII prohibits disparate-treatment and disparate-impact and requires employers, among other things, to provide employees and prospective employees reasonable religious accommodations absent a showing of undue hardship.
The district court granted summary judgment in favor of the EEOC, but the Tenth Circuit reversed, concluding that the EEOC could not prevail because Ms. Elauf had not informed Abercrombie that she wore her headscarf for religious reasons and needed an accommodation before the Company made its hiring decision.
The Supreme Court reversed and remanded. The Court rejected Abercrombie’s argument that Ms. Elauf was required to show it had “actual knowledge” of her need for a religious accommodation. 575 U.S. ___ (2015). Rather, the Court held that an applicant need “only show that his [or her] need for an accommodation was a ‘motivating factor’ in the employer’s decision” to prevail on a disparate-treatment claim. Id.
Applied to Ms. Elauf, Title VII’s disparate-treatment provision required her to show that Abercrombie “fail[ed] or refuse[d] to hire” her “because of” her religion or religious practice. 42 U.S.C. § 2000e–2(a)(1); see also 575 U.S. ___ (2015). According to the Court, Title VII’s “because of” standard “does not impose a knowledge requirement” (unlike, for instance, the Americans with Disabilities Act, which requires employers to accommodate only “known” disabilities). 575 U.S. ___ (2015). See also 42 U.S.C. § 2000e–2(a)(1); 42 U.S.C. § 2000e–2(m). Instead, Title VII prohibits certain motives irrespective of an employer’s knowledge. In other words, as the Court explained, “[a]n employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not [its] motive.” 575 U.S. ___ (2015) (emphasis in original). In contrast, “an employer who acts with the motive of avoiding accommodation may violate Title VII even if [it] has no more than an unsubstantiated suspicion that accommodation would be needed.” Id.
The Court similarly rejected Abercrombie’s argument that “a claim based on a failure to accommodate an applicant’s religious practice must be raised as a disparate-impact claim, not a disparate-treatment claim” and that a neutral employment policy cannot support a claim of intentional discrimination. Id.
Employers may wish to consider the following practical implications in light of the Court’s recent decision:
- The decision changes the religious accommodation standards for employers under Title VII. Employees and applicants no longer need to explicitly request religious accommodations. Rather, an employer found to have had an improper motive could be deemed in violation of Title VII, even if it had no knowledge of an individual’s need for a religious accommodation. As a result, employers should carefully consider the reason(s) for its employment decisions and determine whether a court might infer an improper motive.
- The Court’s ruling could call into question employee handbooks and employer policies. Facially neutral policies, according to the Court, can support religious discrimination claims. Employers may therefore wish to review their handbooks and policies to determine whether certain provisions could lead to discrimination.
- The decision reinforces the importance of involving human resources and/or counsel in employment decisions, particularly where an employment decision involves an individual in a protected class.
- The decision demonstrates the importance of providing management training to all supervisors, including low-level supervisors. Such training is especially important for companies with decision-makers and employees in a number of locations.
- Employers still need to exercise care in structuring the interview process and crafting interview questions. Despite the Court’s holding, employers should remain cautious about inquiring into any protected characteristic, including, but not limited to, potential religious accommodation needs, to avoid any inference of improper motive and to ensure lawful (and consistent) treatment of all applicants.