Abercrombie & Fitch (AF) refused to hire Samantha Elauf, a practicing Muslim, on the basis that the headscarf she wore during her interview conflicted with AF’s “Look Policy” which prohibits employees from wearing “caps” (a term that the Policy did not define). The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which, inter alia, prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship. Elauf wore the headscarf as part of her religious practice as a Muslim but she did not communicate this to the manager who interviewed her nor did she ask for an accommodation in order to wear the headscarf.
The EEOC prevailed in the District Court, but the Tenth Circuit reversed, awarding AF summary judgment on the ground that failure-to-accommodate liability attaches only when the applicant provides the employer with actual knowledge of his/her need for an accommodation. The U.S. Supreme Court granted review of the case and held that to prevail in a disparate-treatment claim under Title VII, an applicant need show only that his/her need for an accommodation was a “motivating factor” in the employer’s decision, not that the employer had knowledge of his/her need.
The Supreme Court said that Title VII’s disparate-treatment provision requires Elauf to show that AF: (1) “fail[ed] . . . to hire” her (2) “because of” (3) “[her] religion” (including a religious practice). And Title VII’s “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. Thus, rather than imposing a “knowledge standard,” Title VII prohibits certain motives, regardless of the state of the actor’s knowledge. According to the Supreme Court “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement.”
The Court gave the following example to illustrate its point: “[S]uppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in its decision [not to hire the applicant], the employer violates Title VII.”
Furthermore, the Court held that Title VII’s definition of religion clearly dictates that failure-to-accommodate challenges can be brought as disparate-treatment [aka intentional discrimination] claims. In doing so, the Court rejected AF’s argument that a neutral policy [against headwear at work] cannot constitute intentional discrimination. According to the Court, Title VII does not demand mere neutrality with regard to religious practices (e.g. that they be treated no worse than other practices). Instead, the law gives religious practices favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s religious observance and practice.”
The Take Away:
The Supreme Court concluded that an employer is surely entitled to have, for example, a no headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.
But, how is an employer to know when the accommodation may be needed?
Unfortunately that question is not clearly answered by the Court’s decision. In a footnote, the Court states that “[w]hile a knowledge requirement cannot be added to the motive requirement, 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 [it] cannot discriminate ‘because of’ a ‘religious practice’ unless he knows or suspects it to be a religious practice.” However, as the Court explained, that issue was not presented in the case, since AF knew (or at least suspected) that the scarf was worn for religious reasons. The Court said that since the question was not discussed or briefed by either side, it is inappropriate to resolve it.