Arabic businesswoman in officeOn Monday, June 1, 2015, the United States Supreme Court held that an employer may not refuse to hire an applicant if the need for a religious accommodation was a motivating factor in the employer’s decision, unless the accommodation would pose an undue hardship. In EEOC v. Abercrombie & Fitch Stores, Inc., U.S., No. 14-86 (June 1, 2015),  the justices almost unanimously reversed the decision of the U.S. Court of Appeals for the Tenth Circuit that held that the U.S. Equal Employment Opportunity Commission (“EEOC”) failed to make its religious accommodation claim under Title VII of the 1964 Civil Rights Act (Title VII”) based on Abercrombie & Fitch’s (“Abercrombie”) failure to hire Samantha Elauf, a Muslim woman who was denied a job at an Abercrombie & Fitch retail store because she wore a hijab, or headscarf, for religious reasons.

In 2008, Ms. Elauf attended her job interview for a sales position at an Abercrombie Kids store in Tulsa, Oklahoma, wearing a hijab – the traditional veil or head covering worn by Muslim women in public – and did not affirmatively say that she was a practicing Muslim or request a religious accommodation. Following the job interview, Ms. Elauf was initially deemed qualified for the sales position; however, after consultation with upper management, Ms. Elauf was denied the job because her hijab violated the company’s “Look Policy” in two ways: it was black and it was considered headwear.

Religious Accommodation Claim

In 2011, the EEOC filed suit in the Northern District of Oklahoma against Abercrombie & Fitch Stores Inc. on behalf of Ms. Elauf, and a federal jury awarded $20,000.00 in compensatory damages at trial. On appeal, the U.S. Court of Appeals for the Tenth Circuit reversed the lower court’s ruling and awarded Abercrombie summary judgment, concluding that the EEOC failed to make out a claim on behalf of Ms. Elauf. Specifically, the court held that under Title VII’s religion-accommodation provisions, a plaintiff must establish that she initially informed the employer that she engaged in a particular practice for religious reasons and needs accommodation for the practice due to a conflict between her religious practice and Abercrombie’s work policies.

The U.S. Supreme Court rejected Abercrombie’s argument that it should be held responsible for providing an accommodation only where a job applicant has expressly informed the employer of their need for an accommodation. The justices made clear that an employer may be liable for religious discrimination under Title VII for failure to accommodate a job applicant’s religious practice even if the employer lacks actual knowledge of a conflict between the religious practice and the workplace policy. An employer cannot refuse to hire an applicant because of any practice the employer knows or even suspects is religious. Here, the undisputed facts showed that an Abercrombie employee suspected Ms. Elauf’s headscarf had religious meaning and refused to hire her on the basis of the headscarf.

Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin – this prohibition includes discriminatory hiring practices. The Abercrombie decision has placed a heightened duty on employers to proactively accommodate religious practices so long as the practice does not unduly affect the company’s business.  Employers should note that because this case addresses religious-accommodation claims under Title VII, there is no reason to believe that this will affect disability discrimination claims under the American’s with Disabilities Act (“ADA”) where employers are only obligated to accommodate known physical and mental limitations; however, this opinion begs the question:  Is it now permissible for an employer to inquire about an applicant’s potential inability to conform to certain work standards if the inquiry involves topics, like religion, that are normally off limits? For instance, if the work schedule must be modified to accommodate an applicant’s religious observance.

When Must Employers Offer Religious Accommodations to Job Applicants?

Although the Abercrombie decision is undoubtedly a pro-employee ruling, the breadth of the opinion is narrowly tailored and fact-specific. The Court did not entertain the instance in which an employer lacks both knowledge and suspicion that an applicant would require religious accommodations, but ultimately fails to hire an applicant based on a potential violation of company policy. That is a question which will be left for lower courts to sort through.  Until then, employers should be proactive when applying workplace policies.  Specifically, employers should ensure that human resource personnel and managerial employees with hiring and firing authority are trained on religious discrimination and are:    

  • Aware of the need to accommodate a potential employee’s religious practices whether or not the applicant requests specific accommodations;
  • Familiar with how to handle applicants or employees whose religious beliefs may conflict with work place policies;
  • Clearly communicating with applicants to potentially address accommodation matters upfront, allowing the company to capitalize on diverse talent; and
  • Making reasonable inquiries into potential accommodation matters based on specific facts because it is safe to assume that not all applicants will or even should be questioned about their religious affiliation when the interaction is free of any facts supporting such an inquiry.

The EEOC sought a broad standard that would have required employers to unilaterally ask potential employees about their religion practices during the interview process without knowledge or suspicion that the practice and workplace policies were in conflict.  The Abercrombie ruling does not make such a sweeping change to Title VII law – the burden now rests with the employer to initiate the interactive process in determining whether a religious practice can be reasonably accommodated. (Click here to check out the previous HR Legalist post summarizing religious accommodation policies prior to Abercrombie.)

At this time, the standard for religious accommodations is in a bit of a flux.  For now, employers must adhere to the standard articulated in Abercrombie and consult the EEOC’s guidance when handling religious accommodations in the workplace.