SUPREME COURT NOTEBOOK

On June 1, 2015 the United States Supreme Court held that an employer engages in unlawful religious discrimination in violation of Title VII where the employer’s belief that it may need to accommodate an applicant’s religious practice is a motivating factor in the employer’s rejection of that applicant.  Liability does not depend on the employer having actual knowledge or confirmation of the religious practice; rather, liability can exist if the employer acts on what is merely an “unsubstantiated suspicion” that a religious accommodation would be needed.  See EEOC v. Abercrombie & Fitch Stores, Inc. (Case No. 14–86, June 1, 2015).

The Facts of the Case
The dispute underlying the Supreme Court’s decision began seven years ago in Tulsa, Oklahoma.  In June 2008 Samantha Elauf, then 17 years old, applied for a sales position at an Abercrombie Kids store.  Ms. Elauf is a practicing Muslim; consistent with her understanding of her religion’s requirements, she wears a headscarf.  She wore such a headscarf when interviewed by the store’s assistant manager, Heather Cooke.  Using Abercrombie’s ordinary system for evaluating applicants, Ms. Cooke rated Ms. Elauf as qualified for hire.

However, Ms. Cooke worried that Ms. Elauf’s headscarf would conflict with the store’s “Look Policy”.  While the headscarf was not discussed during the interview, Ms. Cooke believed it to be related to Ms. Elauf’s religion.  This set up a potential conflict with the company’s Look Policy, which governs employee dress and is intended to project a certain image for Abercrombie.  Relevant to Ms. Elauf, the Look Policy prohibits “caps” (an undefined term) as being too informal for Abercrombie’s desired image. 

Ms. Cooke initially asked the Tulsa store manager whether the headscarf was a “cap” under the policy.  The store manager did not answer the question, though, so Ms. Cooke asked the same thing of the district manager, Randall Johnson.  Mr. Johnson told Ms. Cooke that the headscarf, like all headwear, religious or otherwise, would violate the Look Policy.  Assuming that the headscarf was worn for religious reasons and that Ms. Elauf would ask to wear it when working, Mr. Johnson told Ms. Cooke not to hire her.

EEOC Filed Suit On Ms. Elauf's Behalf
Ms. Elauf believed that she had been wronged and brought her story to EEOC.  The agency eventually filed a religious discrimination claim on Ms. Elauf’s behalf in federal court.  The trial court granted summary judgment on the issue of liability (finding that Abercrombie’s actions violated Title VII) and allowed her case to go to trial on damages.  The jury awarded $20,000 in compensatory damages.

Abercrombie appealed to the Tenth Circuit Court of Appeals.  The appellate court reversed the trial court’s grant of summary judgment for EEOC and awarded summary judgment to Abercrombie.  “It concluded 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 his need for an accommodation.”  EEOC sought and obtained Supreme Court review.

Supreme Court Decision
The Supreme Court reversed the decision of the Tenth Circuit, finding that the appellate court had misinterpreted the legal standard.  Title VII prohibits disparate treatment because of religion.  According to the majority opinion, in the context of hiring, the disparate-treatment provision makes it unlawful for an employer to “(1) ‘fail . . . to hire’ an applicant (2) ‘because of ‘(3) ‘such individual’s . . . religion’ (which includes his religious practice).”

Applying that to Ms. Elauf’s situation, the parties agreed that the first and third prongs were met: Abercrombie had declined to hire Ms. Elauf and the wearing of a headscarf is a religions practice if done pursuant to a sincerely held belief.  The Court stated that the remaining question is whether Abercrombie declined to hire her “because of” religion. 

Abercrombie’s main defense relied on a “head in the sand” type of argument.  Specifically, it contended that “an applicant cannot show disparate treatment without first showing that an employer has ‘actual knowledge’ of the applicant’s need for an accommodation.”  In this case, it argued, there was no actual knowledge: Ms. Elauf did not state that she wore a headscarf for religious reasons and no Abercrombie personnel involved in the interview process, each of whom suspected a faith basis, avoided bringing the Look Policy to Ms. Elauf’s attention. 

The Supreme Court disagreed with the argument and rejected this kind of willful ignorance.  They held that, rather than show actual knowledge, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”  Under Title VII it is the employer’s motive that is the key, not its knowledge.
(The Court observed that Title VII differs from some other laws.  The ADA, for example, requires reasonable accommodations to “known” disabilities.)

The Supreme Court also rejected Abercrombie’s argument that a there is no disparate treatment where a facially neutral policy treats religious practices no less favorably than similar secular practices.  Here, for example, all “caps” were forbidden by the Look Policy.  The Court stated that Title VII gives religious practices a “favored” status and obligates “employers not ‘to fail or refuse to hire or discharge any individual” because of religion.

Practical Considerations
The Abercrombie decision puts the burden on employers to confront potential religion-in-the-workplace issues head on, without being confrontational.  An employer that suspects a possible conflict between its workplace rules and an applicant or employee’s religious beliefs/practices needs to take action to move out of the “suspect” zone.  In this case, for example, although Abercrombie suspected that Ms. Elauf might need accommodation, it took no action to confirm that suspicion. 

Two better practices seem readily apparent.

First, Abercrombie could have offered the job to Ms. Elauf and then dealt with any Look Policy conflict if and when it arose. 

Second, Abercrombie (Ms. Cooke on her own or at the direction of the store or district manager) could have brought the Look Policy to Ms. Elauf’s attention and asked her whether she would be able to follow it.  If Ms. Elauf had said “yes” then there would be no conflict between policy and religious practice.  If Ms. Elauf had said “no” then there would have been an opportunity to explore that response, to ask about the nature of the conflict (and thereby discover the existence of Ms. Elauf’s religious objection), and to then consider whether reasonable accommodation would be possible (or whether accommodation would be an undue hardship).  The Abercrombie decision does not mean that an employer must in all cases modify a workplace rule due to a religious practice; the rule continues to be that an employer must modify a workplace rule to accommodate a religious practice unless that accommodation would result in undue hardship. 

Related to this second point, let’s assume that a pre-offer discussion leads to the conclusion that a candidate who is otherwise eligible and qualified for hire has a religious belief or practice that conflicts with an existing workplace rule and that this belief or practice cannot be accommodated without undue hardship to the employer.  It seems that the best practice under Abercrombie would be for the employer to nevertheless extend the offer of employment and let the applicant accept or reject that offer.

Bullard Law will continue to follow religious accommodation and other issues of interest to employers.  Please feel free to contact us anytime with any questions about the Abercrombie decision or any other labor, employment, or benefits issues.