Photo: dbking via Flickr (CC by 2.0)
Photo: dbking via Flickr (CC by 2.0)

The US Supreme Court on June 1, 2015 decided the highly publicized case of EEOC v. Abercrombie & Fitch Stores, Inc. (“Abercrombie”).  The case involved a job applicant, Samantha Elauf, who went to an interview at the popular retail store wearing a hijab or traditional Muslim head scarf.  The interviewing manager gave her high marks and recommended she be hired.  The district manager vetoed the decision because the wearing of the hijab conflicted with company’s dress code or “Look Policy.”  He stated that all headwear, religious or otherwise, was against the policy.  The company claimed that the employee never told them she needed an accommodation.  The Court addressed the question whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance or practice” only if the employer has actual knowledge that a religious accommodation is required.

The EEOC filed suit on behalf of Elauf and prevailed in the District Court, and Abercrombie appealed.  The Tenth Circuit Court of Appeals reversed the decision and awarded summary judgment to Abercrombie on the ground that the requirement to accommodate an employee’s religious beliefs attaches only when the employee specifically tells the employer of the need for the accommodation.

The Supreme Court, in a resounding 8-1 decision which can be read here in its entirety, reversed the Tenth Circuit and remanded the case back to the lower court.  The Court held that an applicant need only show that the need for an accommodation was a motivating factor in the employer’s decision not to hire in order to be actionable. According to the opinion authored by Justice Scalia, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightfor­ward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Even a facially neutral policy barring all employees from wearing headscarves does not exempt a company from providing a religious accommodation allowing some employees to wear headscarves for religious purposes.

Employers should take note of this case along with the 2014 guidance on religious garb in the workplace issued by the EEOC.  The EEOC makes clear that Title VII prohibits a wide variety of actions, including: treating an applicant or employee differently on the basis of religion in recruitment, hiring, promotion, benefits, training, job duties, termination or any other aspect of employment; denying reasonable accommodation for sincerely held religious practices, unless the accommodation constitutes an undue hardship; segregating employees on the basis of religious belief; allowing workplace harassment on the basis of religious belief; or retaliating against an employee who requests a religious accommodation.  The EEOC defines religious practice or belief very broadly. The definition encompasses not only traditional, organized religions, but any theistic and non-theistic moral or ethical beliefs, even if they are new, uncommon, not part of any formal organization, or followed by very few people.  Further, it does not matter if the practice or belief varies among different members of the same religion, or if an individual employee’s adherence to the belief changes over time.

The EEOC warns companies of the following:

  • An employee does not need to say any “magic words” when he or she requests an accommodation.  If it is obvious that a particular practice is religiously-motivated and conflicts with a work policy, the employer is obligated to provide an accommodation.
  • Employers must take their employee’s word that a particular practice or belief is “sincerely held.”
  • An accommodation must be granted unless the accommodation would present an undue hardship to the employer.
  • A grant of religious accommodation does not mean that the employer must grant other employees the same accommodation for non-religious reasons.
  • Customer preference is not a defense to a claim of discrimination.
  • Segregating the employee or moving him or her to another position that is not customer facing is likely not appropriate.