Case Summary – EEOC v. Abercrombie & Fitch
On June 1, 2015, the United States Supreme Court issued an opinion in EEOC v. Abercrombie & Fitch Stores, Inc. The majority opinion, authored by Justice Antonin Scalia, analyzed whether an employer must have actual knowledge of an applicant or employee’s religious belief before the protections of Title VII attach to him or her.
In this case, Abercrombie & Fitch Stores, Inc. adopted a “Look Policy” that governed the way its employees dressed while at work. The policy explicitly prohibited “caps” from being worn. However, the Policy did not define the term “cap.” Samantha Elauf, a practicing Muslim, often wore a headscarf, in accordance with her religious beliefs. She applied for a position with Abercrombie in which she wore her headscarf to an interview. Based on Abercrombie’s evaluation process, she was given a rating sufficient for her to be hired. However, Heather Cooke, the store’s Assistant Manager, was concerned that Elauf’s headscarf might interfere with Abercrombie’s Look Policy.
As a result, Cooke spoke to her District Manager, Randall Johnson, regarding whether Elauf’s headscarf violated Abercrombie’s Look Policy. She informed Mr. Johnson that she believed Elauf wore the headscarf because of her religious beliefs. Mr. Johnson indicated that Elauf’s headscarf would violate the Look Policy, as would any other headwear—religious or otherwise. Elauf was not hired and the Equal Employment Opportunity Commission actually filed suit against Abercrombie alleging that it had violated Title VII. Specifically, the EEOC alleged that Abercrombie refused to hire an applicant in order to avoid accommodating a religious practice. The District Court granted summary judgment in favor of the EEOC. On appeal, the Tenth Circuit Court of Appeals reversed this decision holding that an employer cannot be held liable under Title VII for failing to accommodate a religious practice until the employee or applicant provides the employer with actual knowledge of his need for an accommodation.
The Court began its analysis by examining Title VII and its prohibitions against employment discrimination. The Court examined the concept of disparate treatment, which occurs when an employer intentionally discriminates against an applicant or employee. The Court also discussed the concept of disparate impact, which occurs when an employer attempts to enforce a facially neutral policy that has an adverse impact on a protected group. Abercrombie argued, unsuccessfully, that a plaintiff cannot show disparate treatment without first showing that an employer had “actual knowledge” of his need for a reasonable accommodation. The Supreme Court disagreed with this position indicating that an applicant need to only show that his need for an accommodation was a motivating factor in an employer’s adverse employment decision. In other words, if the employer had any inclination that an applicant might require an accommodation, and made an adverse employment decision to avoid providing the accommodation, Title VII would be violated.
The disparate treatment provision of Title VII forbids employers from refusing to hire an applicant because of that individual’s religious beliefs. With respect to this case, The Court made a few preliminary determinations: (1) Abercrombie did not hire Elauf; and (2) at the time she was interviewed, she was wearing a headscarf in accordance with her religious belief. The final element the Court examined was whether Abercrombie failed to hire her “because of” her religious practice. The Court emphatically stated that Title VII does not impose a knowledge requirement on would-be employers. The Court succinctly defined the rule governing disparate-treatment claims based on a failure to accommodate a religious practice. That rule was defined as follows: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Further, the Court determined that Congress never included language related to an actual knowledge requirement in Title VII. The Court stated that it would not rewrite the law to include an element that Congress has not addressed.
The Court also struck down Abercrombie’s argument that its “Look Policy” was neutral and therefore could not constitute “intentional discrimination.” The Court countered this argument by stating emphatically that Title VII does not demand mere neutrality with respect to religious practices; instead, these practices have been given favored treatment. The Court noted that an employer is entitled to incorporate policies that are neutral, but when an applicant requires a religious accommodation, Title VII requires employers’ otherwise neutral policies to give way to the need for the accommodation, so long as it is reasonable. The Court reversed the Tenth Circuit’s decision and remanded the case to the trial court.
This decision by the Supreme Court clarified any belief that employers must have actual knowledge that an applicant or employee needs a religious accommodation. The decision clarifies the Court’s position with respect to religious beliefs in the context of accommodations. The Court requires employers to provide a favored position and employers’ constructive knowledge that an applicant or employee may need a religious accommodation is sufficient to trigger the protections of Title VII.
Going forward, employers need to revisit their appearance policies. Also, employers need to make sure that their management level employees are well versed in Title VII’s requirements. Additionally, employers need to train their employees on how to handle a situation in which an applicant or employee wears clothing that may interfere with an appearance policy. Because the Court is focusing on motive and not actual knowledge, many more employers could find themselves between the crosshairs of a discrimination lawsuit.