Last week the Equal Employment Opportunity Commission (EEOC) won what has become known as the “headscarf case” before the U.S. Supreme Court. The case, EEOC v. Abercrombie & Fitch, deals with provisions of Title VII that make it illegal for an employer to refuse to hire a job applicant just to avoid accommodating a religious practice. The decision expands Title VII liability to instances where a job applicant has not informed the employer of a need for an accommodation―a novel concept to many employers.
In Abercrombie, the EEOC brought suit on behalf of Samantha Elauf claiming that the company violated Title VII by not hiring her. At the time, Abercrombie had a “look policy” that governed employees’ attire and prohibited employees from wearing “caps.” Elauf is a Muslim teenager who wears a headscarf as a part of her religious practice. She wore the headscarf to her interview at Abercrombie. The company suspected (but did not confirm) that Elauf wore the headscarf due to her religious beliefs. Yet, Elauf was not hired because her headscarf violated the “look policy.”
The EEOC prevailed in the district court, receiving money damages for Elauf. However, the Tenth Circuit Court of Appeals reversed and held that an employer does not violate Title VII’s ban on religious discrimination unless management actually knows that a job applicant needs an exception from a work rule due to a religious practice. The EEOC appealed arguing that Title VII contained no such knowledge requirement.
At the Supreme Court, Abercrombie argued that unless the applicant told the interviewers that she intended to wear a headscarf for religious reasons she could not sue for failing to accommodate that religious practice. In essence, Abercrombie sought to put the burden on the applicant to tell the employer of the need for an accommodation. This argument was squarely rejected by the Supreme Court in concluding that Title VII does not include a burden-shifting test that would put the burden on plaintiffs to seek a religious accommodation. Even more, the Supreme Court explained that unlike the Americans with Disabilities Act (ADA), Title VII includes no requirement that an employer have actual knowledge of the reason for an applicant’s need for an accommodation.
But how can an employer intentionally discriminate without knowledge of the need for a religious accommodation? The Supreme Court explained that “motive and knowledge are separate concepts.” Intentional discrimination prohibits certain motives, regardless of the state of the actor’s knowledge. Thus, an applicant need show only that her need for an accommodation was a motivating factor in the employer’s decision, not that the employer actually knew of her need. So, “an employer may not make an applicant’s religious practice confirmed or otherwise, a factor in employment decisions.”
The question not squarely answered by the Supreme Court is whether an employer’s motive to avoid accommodating a religious practice requires knowledge that the practice is religious in nature. While the majority stated that it is “arguable” that the motive requirement is not met unless the employer at least suspects that the practice in question is a religious practice, the Court left this question for another day because Abercrombie knew―or at least suspected―that the scarf was worn for religious reasons.
Following this decision, employers may be tempted to ask explicitly whether an accommodation is based on a religious belief or if a candidate ascribes to a particular faith. Of course, it is risky to ask any questions about someone’s protected characteristics during a job interview. So this decision creates a difficult situation where an employer risks suit for both asking and not asking certain questions. Regardless, employers now know that an applicant does not have to explicitly put the employer on notice of his or her religious practice to set forth a Title VII claim. Employers should therefore be on high alert when they know or suspect that something is being worn for religious reasons. Moreover, an employer who has a reason to believe or suspect that accommodation may be necessary (regardless of the source) will need to consider engaging in an interactive process over the possible accommodation with the applicant.