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eLABORate: Ignorance Is Not Bliss: Actual Knowledge of Need for Religious Accommodation Not Required in Title VII Claim

June 03, 2015

In EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86 (June 1, 2015), the United States Supreme Court held that an employer may be liable under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000, et seq., for failing to accommodate a religious practice even if the employee or job applicant fails to provide the employer with actual knowledge of the need for a religious accommodation. In 2008, Samantha Elauf, a practicing Muslim, applied for a position at an Abercrombie & Fitch (“Abercrombie”) store. She was subsequently interviewed by Heather Cooke, the store’s assistant manager. As part of her religious practice, Elauf wears a headscarf (or hijab), and she did so in her interview. During the interview, Elauf and Cooke made no mention of the headscarf, nor did Elauf indicate that she would need any religious accommodation.

Cooke gave Elauf a favorable rating on her interview, which qualified Elauf to be hired. However, Abercrombie has a Look Policy, which prohibits “caps,” and Cooke was concerned that Elauf’s headscarf would conflict with this policy. When Cooke contacted the district manager, Randall Johnson, to determine whether the headscarf constituted a “cap” within the meaning of the Look Policy, Johnson indicated that the headscarf would violate the policy. Although Cooke informed Johnson that she believed Elauf wore the headscarf because of her faith, Johnson directed Cooke to lower Elauf’s rating on the appearance portion of the evaluation, which caused Elauf’s overall score to fall below the threshold necessary to be hired. Accordingly, Elauf was not hired by Abercrombie.

Thereafter, the Equal Employment Opportunity Commission (“EEOC”) sued Abercrombie on behalf of Elauf, alleging that Abercrombie violated Title VII by refusing to hire Elauf because of her headscarf. In response, Abercrombie argued, inter alia, that Elauf had a duty to inform it that she required an accommodation from the Look Policy. The district court granted summary judgment in favor of the EEOC on the ground that Abercrombie had actual notice of Elauf’s religious practice of wearing a headscarf because of Cooke’s assumptions about Elauf’s religion and reason for wearing the headscarf. In reversing the district court’s decision and granting summary judgment in favor of Abercrombie, the Tenth Circuit concluded that ordinarily an applicant (or employee) must establish that she informed the employer that she needed an accommodation for a particular religious practice due to a conflict between the practice and the employer’s work rules.

The U.S. Supreme Court reversed the ruling of the Tenth Circuit in an 8 to 1 decision. In doing so, the Supreme Court held that, to prevail in a disparate-treatment claim, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision,” not that the employer had knowledge of his need. According to the Court, while some anti-discrimination statutes, such as the Americans with Disabilities Act of 1990, impose a knowledge requirement, Title VII does not. Instead, Title VII prohibits certain motives. Thus, “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.” (emphasis added). In other words, “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” (emphasis added). Despite the Court’s ruling in this regard, the Court recognized that the applicant (or employee) must actually require an accommodation for the employer to violate Title VII.

The Court did note in its decision that the motive requirement may not be met if the employer does not suspect that the practice in question is a religious practice. Although the Court declined to specifically address this issue, the Court indicated that an employer may avoid liability if the evidence shows that the employer neither suspected nor had knowledge that a practice is a religious practice.

In light of the Supreme Court’s decision, employers should evaluate their interview, hiring, and employment policies regarding accommodations to ensure they are consistent with the Court’s reasoning.