[Note: we asked JD Supra authors for their First Glance analysis of the United States Supreme Court's decision in EEOC v. Abercrombie, in which the high court ruled that Abercrombie & Fitch was obliged under Title VII of the Civil Rights Act to offer religious accommodation to a Muslim job applicant, although she has not asked for accommodation. Here is what we heard back from attorney Andrew Hoag of law firm Fisher & Phillips:]

Analysis of the Ruling

Post-Abercrombie, an applicant need only show that his or her religious practice was a motivating reason for an employer’s declination of an employment offer to have a cause of action for religious discrimination. The Court notes that the test is “straightforward.” Conceptually, the difficulty is that while “an individual’s actual religious practice may not be a motivating factor in failing to hire, in refusing to hire,” etc., there is no requirement that an employer have knowledge of a religious practice to face liability. Justice Antonin Scalia’s construction of the statute allows the possibility of making an employment decision motivated by a religious practice without knowledge of the religious practice. Indeed, the opinion notes: “Motive and knowledge are separate concepts.”

Employers may face liability for failure or refusal to hire an applicant or for discharge of an employee because of his or her religious practices (even without knowledge that the practice is a religiously-based practice)...

Implications of the Ruling

Employers may face liability for failure or refusal to hire an applicant or for discharge of an employee because of his or her religious practices (even without knowledge that the practice is a religiously-based practice). As Justice Samuel Alito’s concurrence points out, in such a system “an employer could be held liable without fault.” To demonstrate his point, hypothetically, an employer may face liability for refusing to hire an applicant whose headscarf violates the company’s dress policies. The liability is imposed because the company failed to accommodate religious dress. Even if the company had no knowledge that the headscarf was a hijab, worn for religious reasons, it still faces liability. And it does so irrespective of the fact that it is precluded from asking her about her religious beliefs. Paradoxically, the same employer could have legally refused to hire a similar applicant wearing a headscarf, the same headscarf, if the headscarf were not a hijab.

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Read Andrew Hoag's additional analysis of EEOC v. Abercrombie here>>