On June 1, 2015, the United States Supreme Court ruled 8-1 that the retail chain Abercrombie & Fitch may have violated Title VII of the Civil Rights Act of 1964 in denying employment to an observant Muslim woman because her hijab violated Abercrombie’s “Look Policy” – even though the applicant’s religious beliefs were never mentioned during the interview process and the applicant never asked for an accommodation.
Like many retailers, Abercrombie maintains a dress and appearance policy which dictates certain appearance standards for its employees. In October, 2008, seventeen year-old Samantha Elauf applied for a sales position at an Abercrombie store in Oklahoma. Elauf was rated as qualified to work at Abercrombie, but was ultimately denied employment because her black headscarf did not comply with Abercrombie’s employee-appearance policy which (at the time) did not permit employees to wear black clothing or head coverings on the sales floor. Notably, during the interview process, Elauf was never asked about her headscarf and never told that it violated the company’s appearance policy. After being denied employment, Elauf, with the assistance of the Equal Employment Opportunity Commission, sued Abercrombie alleging that, in denying her employment, Abercrombie impermissibly discriminated against her based upon her religious beliefs.
Generally, employers are prohibited from discriminating against employees or job applicants based upon their religious beliefs. Thus, employers must, when possible, accommodate workers’ religious beliefs. Typically, the employee is responsible for initiating the dialogue by requesting an accommodation. Abercrombie argued that because Elauf never requested an accommodation for her headscarf, it was not in a position to offer her an accommodation.
The Supreme Court Justices rejected Abercrombie’s defense. In reversing a prior appellate court ruling in Abercrombie’s favor, a majority of the Court held that whether or not Abercrombie had concrete knowledge of Elauf’s need for an accommodation for religious reasons was not relevant – only whether her headscarf was a “motivating factor” in their decision not to hire her.
In writing for the majority, Justice Scalia wrote, “motive and knowledge are separate concepts”... “an employer who acts with the motive of avoiding accommodation may violate [the law] even if he has not more than an unsubstantiated suspicion that accommodation would be needed.” Thus, although there is a dispute about what the management knew about the applicant’s faith, because Abercrombie at least suspected that Elauf may have had a religious motive in wearing the headscarf, its decision not to hire her based upon the headscarf may have been discriminatory as a matter of law. The Court added that the law “prohibits actions taken with the motive of avoiding the need for accommodating a religious practice.”
Importantly, it must be noted that the Supreme Court did not make a finding of discrimination; instead, it sent Elauf’s case back to the lower court for further consideration. Should Abercrombie choose to move forward with the lawsuit, it will now be required to demonstrate that accommodating Elauf’s hijab would impose an undue hardship for the company.
In rendering this decision, the Supreme Court has made clear that in order to survive motion practice in a claim of disparate treatment, applicants need only show that their need for an accommodation was a motivating factor for the employer’s decision, not that the employer had certain knowledge that the prospective employee would need or even desire an accommodation. The Court held that Title VII was only concerned with whether religion was a motive, no matter what the employer’s knowledge was.
In light of the Supreme Court’s Abercrombie decision, employers who maintain written appearance policies should explain the policies to a job applicant at the time of the interview, and ask the applicant if there is any reason why they cannot abide by the policy. It is critical for employers to continue to work with employees/applicants who, for religious reasons, must maintain a specific physical appearance or manner of dress as dictated by the tenets of their religion. While accommodation is required only if it can be made without undue hardship to the employer, when it comes to religious apparel, typically only safety concerns constitute undue hardship.
If you have any questions concerning EEOC v. Abercrombie & Fitch, or would like a copy of the Court’s opinion or have any question with respect to employment issues, please contact a member of our Employment Practices Liability Practice Group.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel. THIS IS AN ADVERTISEMENT
