The U.S. Supreme Court issued its ruling in the closely followed religious discrimination case, EEOC v. Abercrombie & Fitch Stores, Inc. The Court found that Abercrombie engaged in religious discrimination when it refused to accommodate a Muslim applicant because she wore a hijab, an Islamic religious headscarf (Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14–86, 575 U.S. (Jun. 1, 2015)).
At issue in the case was whether an employer violates Title VII for failing to accommodate an employee’s religious practices when the employer had no knowledge of the employee’s accommodation request.
The nation’s high court ruled that under Title VII of the Civil Rights Act of 1964, “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” regardless of whether the employer had actual knowledge of the applicant’s need for an accommodation. To prevail, an applicant needs to show only that the need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his/her need.
Company Concerned about “Look Policy”
The case involved a 17-year-old, Samantha Elauf, who applied for a job at an Abercrombie Kids store. The applicant wore a hijab, a religious headscarf worn by many practicing Muslims, to her interview.
The assistant manager, Heather Cooke, interviewed Elauf and ranked her style a “6,” which was a rating that qualified her to be hired. However, Cooke was concerned that the hijab might violate the store’s “Look Policy.” She sought guidance from the store manager as to whether the headscarf was a forbidden “cap,” but got no answer, so she went to the district manager.
Cooke informed the district manager that she believed Elauf wore the headscarf because of her faith. The district manager stated that the headscarf would violate Abercrombie’s Look Policy, as would all other headwear, religious or otherwise. The district manager directed Cook not to hire Elauf. Elauf’s interview score was changed and she was not offered a position.
The U.S. Equal Employment Opportunity Commission (EEOC) brought a lawsuit against Abercrombie. The EEOC won at the federal district court, but lost on appeal when the 10th Circuit court ruled that Abercrombie could not be liable for religious discrimination because the applicant never informed the store prior to its hiring decision that she wore the headscarf for religious reasons and Abercrombie, therefore, did not have actual knowledge of her need for an accommodation.
The EEOC then appealed the case to the U.S. Supreme Court, asking the Court to issue a final decision on whether an employer must have actual knowledge of the need for an accommodation in order for there to be a violation under Title VII.
No Actual Knowledge Required
The Court refused to impose a knowledge standard. Instead, the Court noted that federal law prohibits certain motives regardless of the actor’s knowledge. To prevail, an applicant needs to show only that the need for an accommodation was a motivating factor in the employer’s decision. In other words, if the facts show that the employer refused to hire the employee out of a desire to avoid accommodation, the employer can be held liable for its decision.
It doesn’t matter if the employer actually knew of a need for an accommodation or just assumed one might be required and acted on that assumption; as was the case in the facts presented to the Court. In this case, Abercrombie, at the very least, suspected that the headscarf was worn for religious reasons and refused to hire Elauf based on that assumption.
Remember, anti-discrimination protections are designed in part to eliminate actions based stereotypes. Think about disability discrimination protections, for example. If an employer refused to hire an employee in a wheelchair because the employer assumed it might have to come up with some accommodations for the employee, that refusal would constitute disability discrimination.
The U.S. Supreme Court’s decision that actual knowledge is not required is the rule of law that all employers must follow.
Duty to Accommodate
Furthermore, employers have an affirmative obligation to accommodate religious practices.
Abercrombie argued that its Look Policy is a neutral policy that cannot constitute “intentional discrimination.” However, the Court disagreed in the context of religious practices, stating that Title VII demands more than mere neutrality with regard to religious practices — that they be treated no worse than other practices. Instead, religious practices are given “favored treatment,” and employers have an affirmative obligation to accommodate religious practices.
“Title VII requires otherwise-neutral policies to give way to the need for accommodation,” said the Court.
Both federal and state laws make it unlawful to discriminate against a person based upon the individual’s religious beliefs, observances and practices. Employers must reasonably accommodate religious beliefs unless doing so causes an undue hardship on the employer’s business.
In 2013, California specifically amended the Fair Employment and Housing Act to make clear that religious discrimination protections and reasonable accommodation requirements cover religious dress practices and religious grooming practices. The amendments were partly in response to concerns that some employers were segregating employees wearing religious dress, such as head coverings, from jobs that involve public contact. These employer actions, based on perceived biases or customer preferences, are unlawful.
Government Code sections 12926 and 12940 were amended to provide the following definitions:
- “Religious dress practice” is construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts and any other item that is part of how an individual observes his/her religious creed.
- “Religious grooming practice” is construed broadly and includes all forms of head, facial and body hair that are part of how an individual observes his/her religious creed.
The law specifically states that an accommodation of a religious dress or grooming practice that would require segregation of the individual from other employees or the public is “not reasonable.”
- Implement a strong equal employment opportunity policy and distribute the policy to all employees.
- Train managers that hiring and discipline decisions should not be motivated based on assumptions about a protected class and inform managers of their duty to accommodate religious beliefs.
- Work with employees and applicants to determine reasonable accommodations for religious beliefs.
- Engage in an interactive process with employees and applicants to discuss requests for reasonable accommodation.
- Reasonable accommodation can include job restructuring, job reassignment, modification of work practices, adjusting uniforms or allowing time off to avoid a scheduling conflict with an employee’s religious observances.
- Make a case-by-case determination of each requested religious exception from a standardized policy.
Remember that when an exception is made for a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for non-religious reasons.