[co-author: Dexter Pearce - Summer Associate]
In a case Justice Antonin Scalia described as “really easy,” the Supreme Court held that an employer can be liable for failing to accommodate a religious practice even if the employer lacks actual knowledge of a need for an accommodation. Writing for the 8-to-1 majority (Justice Thomas dissented), Scalia stressed that Title VII is concerned with motive, not knowledge. Thus, even if an employer has no more than an “unsubstantiated suspicion” of an applicant’s religious beliefs/practices, the employer violates Title VII if it’s action is motivated by a desire to avoid a potential accommodation.
Abercrombie employs a “Look Policy” that prohibits “caps.” Samantha Elauf, a practicing Muslim, applied for a retail sales position. Elauf wore a headscarf to her interview, but neither the headscarf nor religion were discussed. Heather Cooke, the assistant store manager and interviewer, identified Elauf as qualified for the position, but asked her store manager and the district manager about Elauf’s headscarf, noting that she believed Elauf wore her headscarf because of her faith. The district manager told Cooke that the headscarf would violate the Look Policy and instructed her not to hire Elauf.
The EEOC brought suit on Elauf’s behalf, alleging that Abercrombie violated Title VII by refusing to hire Elauf because of religion. The district court granted summary judgment to the EEOC on the issue of liability, and subsequently awarded $20,000 in damages. The Tenth Circuit reversed, holding that for an employer to be liable for failing to accommodate a religious practice, the applicant must first request the accommodation, thus giving the employer “actual knowledge” of the needed accommodation.
The Supreme Court’s Decision
The Supreme Court rejected the “actual knowledge” requirement imposed by the Tenth Circuit, holding that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” The Court explained the distinction between motive and knowledge. An employer can have actual knowledge of the need for an accommodation and not violate Title VII, as long as the employer’s motive was not to avoid the accommodation by refusing to hire the applicant. However, if the employer’s decision stems from an actual desire to avoid an accommodation, that employer may violate Title VII even if it is acting merely on an “unsubstantiated suspicion.”
The Court offered some examples to explain its reasoning, describing an applicant the employer suspects, but does not know for sure, is an Orthodox Jew unable to work on Saturdays. If the applicant, in fact, requires Saturdays off, and the employer’s decision not to hire him or her at all is motivated by a desire to avoid the accommodation, that employer violates Title VII, unless employing the person anyway would present an undue hardship.
The Court specifically noted in this decision that seemingly neutral policies (like Abercrombie’s “Look Policy”) are not discrimination-proof. Rather, Title VII gives religious practices “favored treatment,” and “requires otherwise-neutral policies to give way to the need for an accommodation [in the absence of undue hardship to the employer].”
What This Means for Employers
The most important lesson from the Abercrombie case is the need to train front-line managers and supervisors on appropriate (and inappropriate) questions during the interview process. Questions about an applicant’s religious affiliations or beliefs are identified by the EEOC as “problematic under federal law.” Instead, employers should train interviewers on how to ask questions which identify potential conflicts with neutral policies. Rather than asking “Do you need Saturdays off because you’re Jewish?” interviewers should describe relevant workplace policies (dress codes, grooming requirements, scheduling demands), and ask applicants whether they can comply with those policies. If the applicant answers, “no,” or hesitates, the interviewer should provide the applicant with an opportunity to explain their answer. This allows the employee to explicitly request an accommodation, and enables the employer to obtain sufficient information to make an informed decision about accommodations. As always, employers should focus their hiring decisions on an applicant’s ability to perform essential job duties, and clearly document the reasons for employment decisions.
