On August 20, 2015, the U.S. Court of Appeals for the Fifth Circuit held that a plaintiff could not prevail on a Title VII religious discrimination claim if there was no evidence the employer knew that the plaintiff refused to engage in a terminable offense, and an offense that led to the employee’s termination, because of a conflicting religious belief.

Plaintiff Kelsey Nobach (“Nobach”) worked for Defendant Woodland Village Nursing Center (“Woodland”) as a nursing home activities aide for thirteen months. In September 2009, Nobach was called in to work an unscheduled shift. Woodland asked Nobach to work in the facility’s main hall, where Nobach did not typically work. During the course of this shift, a nurse who had no supervisory duties over Nobach informed her that a particular resident had requested that the Rosary be read to her. Nobach informed the nurse that she could not read the Rosary because it conflicted with her religious beliefs, though she did not expound on her religious views. Consequently, the Rosary was not read to the resident.

The resident complained to Woodland’s management the following day. Five days later, Woodland terminated Nobach “for failing to assist a resident with the Rosary, which was a regularly scheduled activity when requested by a resident.” After Woodland informed her of her termination, Nobach responded that she could not “pray the Rosary,” because it was “against [her] religion.” Woodland’s management responded that her religious beliefs were immaterial, and the failure to read the Rosary was “insubordination.” Woodland only learned after the termination that Nobach was a former Jehovah’s Witness who remained faithful to some of the faith’s tenets, one of which precluded Nobach’s reading of the Rosary.

Nobach sued Woodland in Mississippi district court and prevailed on a jury verdict. On appeal, the Fifth Circuit originally heard this case in August 2014 and found that Nobach failed to prove that Woodland knew that her refusal to participate in the Rosary rite was based on conflicting religious beliefs. The U.S. Supreme Court, however, took up the mantle and ordered the Fifth Circuit to review Nobach’s case in light of its decision in EEOC v. Abercrombie & Fitch Stores, Inc. In Abercrombie, the Supreme Court held that an employer’s actual knowledge of a conflict between an employee’s duties and the employee’s religious beliefs is not required to substantiate a failure to accommodate under Title VII.

The Fifth Circuit revisited its original opinion on August 20, 2015. Despite the Supreme Court’s guidance, the Fifth Circuit remained steadfast in its holding. The Fifth Circuit found there was no evidence that “Woodland knew, suspected, or reasonably should have known” of Nobach’s conflicting religious belief and that the conflicting belief was the reason for her refusal to engage in the Rosary rite. Given this paucity of evidence, the jury would not be entitled to reject Woodland’s explanation for Nobach’s termination. Indeed, the Court could not find evidence that “anyone involved in [Plaintiff’s] discharge suspected that Nobach’s refusal to pray the Rosary was motivated by a religious belief.” The Fifth Circuit reasoned these facts distinguished Nobach from Abercrombie because, unlike the plaintiff in Abercrombie (a Muslim who wore a traditional head scarf), there was no visible sign of Nobach’s religious beliefs; i.e. there was no indication Woodland knew of the religious conflict. Indeed, the Fifth Circuit held that Abercrombie did not affect the Nobach ruling.

It is difficult to prognosticate the implications of Nobach. The Fifth Circuit’s decision provides employers with a defense to religious discrimination claims, but it is unclear how strong that caveat will be. Based on the language from Abercrombie, it would appear Nobach directly conflicts with Abercrombie and provides little basis for the departure other than a visible sign of a religious belief. Therefore, one practical result may be the attention employers must pay to their employees’ religious raiment.

Such concerns may be readily observable when employers determine company dress codes. A neutral dress code that does not allow for religious wear would more effectively insulate the employer from religious discrimination under Nobach. Of course, a dress code may only be enforced for a neutral reason related to business operations. Thus, Nobach could create an odd standard: employers who have a business need to preclude religious garb will be further insulated from religious discrimination claims; whereas, employers who do not have a reason to enforce a neutral dress code would not enjoy the added protection.

Accordingly, while this decision is, on its face, a win for employers, it may also have an unforeseen consequence. Employers without neutral dress codes would, under Nobach, need to be particularly sensitive when an employee’s external dress reveals a particular set of religious beliefs.

In addition, aside from the religious garb, Nobach reinforces the principle that employers should avoid discussing religious beliefs with their employees and should discourage discussion of religious topics in the office. Such discussions could provide a plaintiff with a platform to argue the employer knew or should have known about the employee’s conflicting religious beliefs.