After Abercrombie, employers must use serious caution regarding applicants’ religion

June 17, 2015

Supreme Court BuildingAt the beginning of this month, the Supreme Court ruled in the landmark Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., greatly expanding the rights of employees and prospective employees to religious accommodations under Title VII of the Civil Rights Act of 1964.  Title VII prohibits a prospective employer from refusing to hire an applicant because of his or her religious practice when such could be accommodated without undue hardship to the employer.

The facts of the case begin in 2008, when 17-year-old Samantha Elauf applied for a position in an Abercrombie & Fitch store.  Elauf, a practicing Muslim, wore a headscarf to the job interview, “consistent with her understanding of her religion’s requirements.”  The interviewer, the store’s assistant manager gave Elauf a rating that qualified her to be hired under Abercrombie’s ordinary system for evaluating applicants.  Nevertheless, the manager was concerned that Elauf’s headscarf would conflict with the store’s “Look Policy” – which governs Abercrombie’s employees’ dress and specifically prohibits “caps” (a term that is not further defined).

The assistant manager sought the store manager’s guidance “to clarify whether the headscarf was a forbidden ‘cap.’”  After she didn’t get an answer, the assistant manager next looked to the district manager, who she informed that she believed Elauf wore her headscarf because of her faith.  The district manager responded by informing the assistant manager that Elauf’s headscarf would violate the Look Policy, “and directed Cooke not to hire Elauf.”

The EEOC sued on behalf of Elauf, claiming religious discrimination in violation of Title VII, which prohibits employers both from refusing to hire an individual because of such individual’s religion (called “disparate treatment”) and from limiting, segregating, or classifying applicants for employment “in any way which would deprive or tend to deprive any individual of employment opportunities…because of such individual’s … religion” (called “disparate impact”).

Abercrombie argued that “an applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation.”  The Court disagreed with this contention, instead holding that an applicant is only required to demonstrate that her “need for an accommodation was a motivating factor in the employer’s decision.”  The Court further laid out its “straightforward rule” for disparate treatment claims: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Undoubtedly, this rule has broad implications for employers.  Previously, there was no clear guidance from the Court on who the burden fell in job application scenarios for employers learning of an applicant’s religion and whether that religion could generate any possible need for a reasonable accommodation under Title VII.  The holding of Abercrombie effectively requires employers to either hire applicants without any regard to their individual religious beliefs and practices, or to explicitly inquire whether an applicant would need accommodations on account of his or her religion during the job application process and consider the reasonableness of such potential accommodations.

True, the Court’s holding did not explicitly require any of this of employers.  However, by creating such a broad prohibition against making an applicant’s religious practice a factor in employment decisions – coupled with the almost open-ended awareness of an applicant’s religious practice that the Court has seemingly imputed to employers (evident from the “confirmed or otherwise” clause) – employers’ most prudent choice is to take any and all measures to ensure that they are not discriminating against an applicant based on his or her religious practice – even without realizing it.