Most employers know that Title VII prohibits discrimination against applicants or employees based on religion. They also know that Title VII requires employers to provide reasonable, religion-based accommodations to employees who express such a need. But a recent decision of the U.S. Supreme Court clarifies that an employer can also become liable for religious discrimination – even when the employer had no knowledge of an applicant’s potential need for a religious accommodation – if the applicant’s religious practice was a “motivating factor” in the employer’s decision against hiring the applicant.

EEOC v. Abercrombie & Fitch

The Supreme Court recently addressed employers’ religious accommodation obligations in EEOC v. Abercrombie & Fitch Stores, Inc. In Abercrombie, Samantha Elauf interviewed for a position at an Abercrombie & Fitch retail clothing store while wearing a hijab, a headscarf typical of practicing members of the Muslim faith. During Elauf’s interview, Abercrombie’s assistant manager never mentioned the company’s “Look Policy,” which prohibited head coverings of any kind, nor did Elauf mention her hijab or otherwise express a need for a religious accommodation if she were selected for the job. Consistent with Abercrombie policy, the assistant manager completed an interview evaluation for Elauf that qualified her to be hired.

However, after the interview, the assistant manager contacted her district manager for guidance on the hiring. The assistant manager explained that Elauf wore a headscarf to her interview that may conflict with the company’s Look Policy, but added that she believed Elauf wore the headscarf because of her faith. The district manager confirmed that any head covering, whether religion-based or otherwise, violated the Look Policy, and directed the assistant manager not to hire Elauf.

The Equal Employment Opportunity Commission (EEOC) sued Abercrombie, alleging that the company violated Title VII by refusing to hire Elauf because of her headscarf. In response, Abercrombie argued that its managers did not have “actual knowledge” that Elauf wore the headscarf for religious reasons, and therefore the company did not treat her differently because of her religion. Instead, Abercrombie failed to hire Elauf based on its religion-neutral Look Policy.

The Court disagreed with Abercrombie, and held that the company’s rejection of Elauf for employment based on her headscarf violated Title VII, even though Abercrombie had no “actual knowledge” that the headscarf was religious or that Elauf would require a religious accommodation to wear the headscarf if hired. The Court reasoned that Title VII expressly prohibits a religious practice from being a “motivating factor” in an employer’s decision against hiring an applicant, but does not limit liability to employers who have “actual knowledge” that the practice is religious in nature. The focus of Title VII liability is the employer’s motive, not its knowledge. Because Abercrombie failed to hire Elauf based on her headscarf, and failed to consider whether she could be reasonably accommodated with a deviation from the Look Policy, the Court concluded that Abercrombie discriminated against Elauf based on her religion.

Take-Aways for Employers

Religion is a sensitive, personal subject, and most employers likely prefer to avoid consideration of an applicant’s or employee’s religious practices unless the employee first raises the issue. But the Abercrombie case demonstrates that employers are not shielded from Title VII liability for failing to accommodate a religious practice simply because they never solicit, or the applicant or employee never volunteers, information regarding a potential need for a religious accommodation. If a religious practice is a “motivating factor” in a personnel decision, the employer violates Title VII, regardless of whether the employer knows the practice is religious in nature. In this way, Title VII is different from accommodation requirements under the Americans with Disabilities Act, which prohibits employers from discriminating against or failing to reasonably accommodate an applicant or employee based only on a known disability.

Therefore, the Abercrombie case suggests that Title VII imposes an affirmative duty on employers to confirm, prior to taking adverse action against an applicant or employee, that the basis for its decision does not implicate a religious practice, even if the decision appears to be religion-neutral. For example, in Abercrombie, the company could have discussed Elauf’s headscarf with her, and, after confirming that the headscarf was religious in nature, determined whether deviation from its Look Policy was a reasonable accommodation. Similarly, if an employee refused otherwise-required weekend work, or insisted upon wearing a garment that otherwise violated the company’s dress code, the employer would risk violating Title VII if it took disciplinary action without first considering whether the employee’s conduct was religious in nature and whether a reasonable accommodation was available.

Unfortunately, the Abercrombie case does not clarify whether an employer must at least suspect that particular conduct is religious in nature before imposing an obligation to consider potential accommodations. Until the courts further clarify the notice required to trigger Title VII’s requirements with regard to religion, employers must be particularly cautious to ensure that personnel decisions are not inadvertently motivated by a potential religious issue.