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Supreme Court Rules in Favor of Woman Denied Abercrombie & Fitch Job Over Headscarf

    June 26, 2015

    In the case EEOC v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court ruled 8-1 in favor of Samantha Elauf, a Muslim woman who was denied a sales job at Abercrombie & Fitch when she was 17 because she wore a headscarf during her interview.  In reversing a decision of the Tenth Circuit Court of Appeals, the Supreme Court made it clear that Title VII of the Civil Rights Act requires employers to make efforts to accommodate an applicant or employee's "religious observance and practice" in employment even in circumstances where the applicant or employee does not expressly request an accommodation if the employer has reason to know that such an accommodation is needed. 

     Even though she met all the hiring qualifications, Ms. Elauf was denied the job due to Abercrombie's dress code prohibiting the wearing of caps.  It was Abercrombie's position that wearing a headscarf violated its no caps policy.  The Equal Employment Opportunity Commission brought suit against Abercrombie for discrimination in violation of Title VII's protection of religious practice, arguing that the employer has a duty to make a reasonable accommodation when it has any type of notice that the job seeker's religious practice conflicts with a job requirement.  Abercrombie argued that since Elauf did not explicitly request to be exempt from the rule, it was not required to provide an exemption, despite the manager's correct assumption that she wore the scarf for religious reasons.

     The U.S. District Court ruled in favor of the EEOC and awarded Elauf $20,000 in damages, but the Tenth Circuit reversed the decision on the basis that an employer cannot be held liable under Title VII for failing to accommodate a religious practice unless the applicant gives actual notice of the need for an accommodation.  In reviewing the Tenth Circuit's decision, the Supreme Court considered the issue of whether Title VII's prohibition that employers cannot "refus[e] to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without an undue hardship" applies only when an applicant has informed the employer of her need for an accommodation. 

    The high court held that to prevail on a discrimination claim, prospective employees must show only that their need for accommodation was a motivating factor for an employer, not that the employer actually knew the prospective employee would need an accommodation. The Supreme Court relied on Title VII's disparate-treatment provision which prohibits an employer from using an applicant's religious practice as a motivating factor in failing to hire the applicant.  Its decision noted that Title VII "does not impose a knowledge requirement," and declined "to add words to the law." The Supreme Court's decision states that "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."

    The Court also rejected Abercrombie's argument that it cannot be held liable for intentional discrimination because it was merely applying a neutral no-caps policy.  In doing so, the Supreme Court makes it clear that Title VII requires employers to make accommodations to otherwise neutral policies when such an accommodation is based on an applicant's religious practice and/or belief.  It is not sufficient to apply a neutral policy across the board; religious accommodations that do not impose an undue hardship are to be given preferential treatment.

    The Abercrombie ruling does not charge employers with any new obligations, but rather the decision clarifies the law and emphasizes the importance of interview and hiring practices that should already be in place. It would be wise for employers to review any image-based policies that could be considered exclusionary and determine in advance how accommodations could be made, since such policies can subject businesses to religious, age and/or disability discrimination claims.  Employers may also consider including applicable company policies and job requirements in written job descriptions.  

    It is of utmost importance to balance the need to be forthright about offering religious accommodations with the need to refrain inquiring about a prospective employee's religious beliefs in an interview. Here are some basic guidelines for employers concerned about what can be said to applicants in light of the recent ruling.  While employers should never ask a job candidate about their religion, potential conflicts should not be ignored.  If a religious practice conflicts with company policy or such a conflict is suspected, interviewers should make clear to the interviewee the company policies and job requirements and ask whether the candidate can comply without directly delving into religious beliefs. If the applicant says she cannot comply, the interviewer can ask the reason. If a protected reason is raised, then the employer can engage in a dialogue to determine whether an accommodation is feasible.

    The Abercrombie case brings attention to religious accommodations for job applicants and the need for businesses to be proactive about accommodating religion while minimizing legal exposure. In doing so, employers should have a mechanism in place for handling requests for accommodations and train hiring managers and supervisors on the process.  And, should questions arise about religious accommodations, Abercrombie demonstrates the importance of seeking out the advice of the company's human resources department or legal counsel before hurriedly deciding that no accommodation is needed.  

    Contributed by Diana Uhimov 

    Allyn & Fortuna LLP    

    Attorneys for Employers

    212-213-8844  (NY)

    973-379-0038 (NJ)