On June 1, 2015, the U.S. Supreme Court ruled 8-1 in favor of the Equal Employment Opportunity Commission (“EEOC”) on behalf of Samantha Elauf, an applicant who was denied a job because she wore a headscarf. The Court’s ruling allows the EEOC to proceed with its claim of religious discrimination under Title VII on Elauf’s behalf. EEOC (Elauf) v. Abercrombie & Fitch Stores, Inc.
Elauf, a practicing Muslim, applied for a sales job at Abercrombie & Fitch. Consistent with her religious practice, she wore a headscarf during her interview. Although Elauf was considered a strong candidate, certain members of Abercrombie’s staff were concerned that her headscarf would be at odds with the company’s Look Policy, which did not allow employees to wear caps. As a result, Elauf was denied the job.
The EEOC sued Abercrombie on Elauf’s behalf, alleging that the company’s refusal to hire her constituted religious discrimination and an unlawful failure to accommodate an applicant’s religious practices, in violation of Title VII of the Civil Rights Act. Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief[.]” An employer may avoid liability under Title VII for an adverse employment decision based on a religious observance or practice only if it can show that it is unable to reasonably accommodate the “religious observance or practice without undue hardship on the conduct of the employer’s business.”
The District Court granted the EEOC’s motion for summary judgment on the issue of liability. On appeal, the Tenth Circuit Court of Appeals reversed, concluding that an employer generally cannot be held liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with “actual knowledge” of his or her need for an accommodation.
The Supreme Court’s Analysis
The issue before the Supreme Court was whether Title VII’s prohibition on religious discrimination only applies where the applicant or employee gives the prospective employer actual notice of his or her need for an accommodation for a religious practice. In reviewing the Appeals Court’s decision, the Supreme Court looked to the language of Title VII and noted that its prohibition against refusing to hire, discharging, or otherwise discriminating against an individual does not impose a knowledge requirement. Instead, the statute provides that such actions may not be taken “because of” an individual’s race, color, religion, sex or national origin. The Court further noted that “because of” under Title VII has been interpreted to prohibit making religion (or one of the other protected characteristics) a “motivating factor” in an employment decision.
According to the Court, knowledge and motive are separate concepts. As a result, an employer who acts with the motive of avoiding an accommodation may violate Title VII even if the employer does not actually know, but rather suspects, that an applicant or employee would require one. Therefore, regardless of whether Abercrombie had actual knowledge that Elauf required an accommodation in the form of an exception to the company’s “Look Policy” and its ban on caps, Abercrombie’s alleged refusal to hire her to avoid providing such an accommodation could be considered a violation of Title VII.
The Court rejected Abercrombie’s argument that its policy regarding caps was neutral and a decision made on the basis of a neutral policy cannot constitute intentional discrimination. Instead, the Court stated that Title VII “does not demand mere neutrality with regard to religious practices[.]” Instead, Title VII gives them favored treatment and affirmatively obligates employers not to fail to refuse to hire or discharge any individual because of the individual’s religious observance and practice. Importantly, the Court stated, “Title VII requires otherwise neutral policies to give way to the need for an accommodation.”
Impact on Employers
The Supreme Court’s decision may raise additional concerns for employers regarding the information they rely upon to make hiring and other employment-related decisions. As made clear by the Court, an employer’s suspicion that an employee may require a religious accommodation cannot be used as the basis for an adverse employment action. Additionally, a neutral policy will not necessarily shield an employer from liability under Title VII with respect to religious accommodation – instead, employers have an affirmative obligation not to apply a neutral policy in a way that would result in discrimination on the basis of a religious practice or observance.
Leech Tishman can assist your organization in implementing or reviewing hiring policies and employment practices to ensure that they comply with Title VII and other applicable law.
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