By: Julia Turner Baumhart
Historically, the duty to accommodate an applicant’s religious practice arose only when the employer actually knew the individual needed an accommodation to resolve a conflict between his or her religious practice and a work rule. On June 1, 2015, the U.S. Supreme Court rejected this “actual knowledge” standard. Instead, in a 7-2 opinion, the Court held that Title VII required only that the need for accommodation – announced or unannounced – was a motivating factor in the employer’s no-hire decision.
In EEOC v. Abercrombie & Fitch Stores, Inc., Samantha Elauf, a practicing Muslim, wore a headscarf to interview for a position in an Abercrombie store. It was not a scarf designed specifically for those of the Muslim religion, but it was similar to other headscarves Abercrombie employees had seen Elauf wear on other visits to the store. The store’s assistant manager, who interviewed Elauf for the position, admittedly suspected Elauf wore the scarf for religious reasons, but never inquired nor did Elauf volunteer this information.
Concerned that wearing a scarf would violate Abercrombie’s “Look Policy,” which prohibited “caps,” the assistant manager sought guidance from her superiors. Because the district manager determined that Elauf’s scarf would in fact violate the Look Policy, Abercrombie did not hire Elauf. The EEOC then brought suit against Abercrombie on Elauf’s behalf.
Abercrombie argued to the Supreme Court that Elauf did not show that the retailer had engaged in disparate treatment because there was no evidence that Abercrombie actually knew the headscarf was a religious practice that would need to be accommodated. Writing for the majority, Justice Scalia rejected Abercrombie’s position, holding that Title VII, unlike the Americans with Disabilities Act, does not impose knowledge as a prerequisite to the duty to accommodate. Explaining further, the majority observed that Congress, in the ADA, imposed the need to accommodate only “known physical or mental limitations.” Title VII, on the other hand, proscribes the employer’s motive, without reference to the employer’s knowledge. As the majority opined:
Motive and knowledge are separate concepts. An 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 his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
On a clarifying note, the majority further opined that the motive requirement needs, at minimum, some suspicion by the employer that a religious practice is in play. The Court did not address the issue of when a religious practice is – in and of itself – sufficient to instill a suspicion. Because Abercrombie management admittedly suspected Elauf wore the headscarf for religious reasons and refused to hire her because of it, this case fit neatly within the Court’s motive versus knowledge distinction without further elucidation of when the “some suspicion” standard will be satisfied.
Finally, the majority rejected Abercrombie’s alternative argument that neutrally applied policies cannot support a disparate treatment claim, but rather must be analyzed only under a disparate impact theory. According to Abercrombie, its ban on caps was a neutrally applied policy because it did not permit any head covering, whether the covering was for secular or religious reasons. The majority held that Title VII mandates “favored” – not neutral – treatment for religious practices because it affirmatively requires accommodation of religious practices.
The Abercrombie decision contains no real surprises. Instead, it presents a reasoned opinion that follows well-established rules of statutory interpretation. At the same time, it clarifies that an “actual knowledge” requirement that had been imposed by some federal courts is not the proper standard for imposing liability. No longer can the employer stick its “head in the sand” when faced with an applicant’s potentially religious practice and hope that no one mentions religion.
This e-blast was written by Julia Turner Baumhart, who is a member of the Detroit SHRM Legal Affairs Committee. Ms. Baumhart is a partner in the labor and employment firm of Kienbaum Opperwall Hardy & Pelton, P.L.C. in Birmingham, Michigan and can be contacted at firstname.lastname@example.org or (248) 645-0000.
Detroit SHRM encourages members to share these articles within their organizations; however, members should refrain from forwarding them outside their organizations or printing for mass distribution without written permission of the Detroit SHRM Executive Committee. June 2015.