U.S. Supreme Court Rules That Request For Religious Accommodation Is Not Mandatory Element For Liability Under Title VII

Volume 14, Issue 10
June 2, 2015

Yesterday, in EEOC v. Abercrombie & Fitch Stores, Inc., the United States Supreme Court addressed the issue of whether Title VII of the Civil Rights Act of 1964's (Title VII) prohibition on a prospective employer refusing to hire an applicant in order to avoid accommodating a religious practice it could undertake without undue hardship applies only where the applicant has actually informed the prospective employer of her need for an accommodation. In finding that neither an express request for a religious accommodation, nor any other form of actual knowledge of a conflict between an applicant's religious practice and a work rule, is necessary for liability under a Title VII claim of disparate treatment, the Supreme Court held there only needs to be evidence that avoiding a potential religious accommodation obligation was a motivating factor behind the prospective employer's actions - with such a motivating factor based on nothing more than an unsubstantiated suspicion that a religious accommodation may be needed.

In summarizing the facts in a light most favorable to the EEOC, the Court explained that the case involved a seventeen (17) year old job applicant, Samantha Elauf, who applied for a position at an Abercrombie store in Tulsa, Oklahoma. She appeared for an interview with the store's assistant manager wearing a headscarf (hijab) as part of her Muslim religious beliefs and understanding of the requirements of the Quran. During the interview, Elauf did not inform the assistant manager that her headscarf was worn for religious reasons. At the time, Abercrombie maintained a dress policy prohibiting the wearing of "caps," which it deemed too informal for Abercrombie's desired image. The assistant manager rated Elauf as qualified to be hired, but was concerned that her headscarf would conflict with the store's dress policy. The assistant manager sought guidance from an Abercrombie district manager, informing him that she believed Elauf wore the headscarf because of her faith. The district manager indicated that the headscarf would violate the company's dress policy and directed Elauf not be hired.

The EEOC sued Abercrombie alleging violations of Title VII for refusing to hire Elauf because she wore a hijab and failing to accommodate her religious beliefs by making an exception to its dress policy. The trial court granted summary judgment in favor of the EEOC and, after holding a trial on damages, awarded Elauf $20,000. However, on appeal, the Tenth Circuit Court disagreed, finding that ordinarily 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 a need for such an accommodation.

In reversing the Tenth Circuit Court, the Supreme Court held that direct, explicit, or actual knowledge of an applicant's need for a religious accommodation is not required to establish a Title VII disparate-treatment claim based on a failure to accommodate a religious practice. Instead, an applicant need only show that avoiding a possible religious accommodation was a motivating factor in the employer's adverse decision. Such a motivating factor can be shown by circumstantial evidence of an employer's mere unconfirmed suspicion. The Court noted that a "request for an accommodation, or the employer's certainty that the religious practice exists, may make it easier to infer motive, but is not a necessary condition of liability." The Court also explained that Title VII does not demand mere neutrality with regard to religious practices, but rather gives them "favored treatment," absent proof that accommodating a religious belief would pose an undue burden on an employer's business.

The two "takeaways" from the Court's Abercrombie decision are that: (1) employers cannot assume they have no obligation to provide religious accommodations just because an employee or applicant has not specifically raised the issue; and (2) employers cannot refuse to hire an applicant just because they think the applicant's beliefs might conflict with a company policy. Nevertheless, the full implications of the Court's Abercrombie decision remain less than clear. On the one hand, the Court ruled that actual knowledge of an applicant's need for a religious accommodation is not necessary to establish a Title VII disparate-treatment claim, but on the other hand the Court recognized "it 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."

In light of this case, employers may be tempted to preemptively raise the issue of religious practice by explicitly asking whether a particular practice or mode of dress is based on a religious belief, which if handled clumsily could potentially rouse suspicion of religious discrimination, or serve as an act of discrimination itself. Employers may also be mistakenly encouraged to avoid addressing the issue and choose to instead make assumptions about an applicant's or employee's unvoiced religious beliefs and practices that could result in discriminatory stereotyping. The Court provided no guidance for employers who must walk this proverbial tight rope, leaving it to the lower courts to apply its holding and provide further direction.

Employers should use the Abercrombie decision as an opportunity to revisit and strengthen their practices and procedures pertaining to religious accommodations, as well as to ensure front-line supervisors are trained on the same, along with how to properly engage in discussions with applicants and employees about company policies without making decisions based upon assumptions regarding the religious beliefs of applicants or employees. Hiring supervisors should know what questions they can and cannot ask and be prepared to refer applicants to the appropriate persons in the company to address any formal accommodation requests.

If you have any questions about this legal development, please do not hesitate to call the KZA attorney with whom you regularly work or call our office at (702) 259-8640

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.