U.S. Supreme Court Revives Muslim’s Bias Claim Against Abercrombie

Title VII of the Civil Rights Act of 1964 prohibits “disparate treatment”, or intentional discrimination, based on religion by making it unlawful for an employer to, among other things, “fail … to hire … any individual … because of such individual’s … religion”. 42 U.S.C. § 2000e–2(a)(1) (emphasis added).

In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores (decided June 1, 2015), the U.S. Supreme Court considered “whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.”

This case arose from the following facts: Samantha Elauf, a practicing Muslim who (consistent with her understanding of her religion’s requirements) wears a headscarf, applied for a position in an Abercrombie store. The store declined to hire her, because her headscarf would conflict with the store’s Look Policy in that it constituted a forbidden “cap”.

The EEOC sued on Elauf’s behalf, asserting that its refusal to hire her violated Title VII. Although the district court granted summary judgment to the EEOC, the Tenth Circuit reversed and awarded Abercrombie summary judgment, reasoning that “ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation.”

The Court (in an opinion authored by Justice Scalia) reversed, and reinstated Elauf’s claims. It rejected Abercrombie’s argument that “an applicant cannot show disparate treatment without first showing that an employer has ‘actual knowledge’ of the applicant’s need for an accommodation” and held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

The Court further explained:

It is significant that § 2000e–2(a)(1) does not impose a knowledge requirement. As Abercrombie acknowledges, some antidiscrimination statutes do. For example, the Americans with Disabilities Act of 1990 defines discrimination to include an employer’s failure to make “reasonable accommodations to the known physical or mental limitations” of an applicant. Title VII contains no such limitation.

Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Thus, 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. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII. …

We construe Title VII’s silence as exactly that: silence. Its disparate-treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice. A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability. (Emphasis in original.)

Finally, the Court rejected Abercrombie’s reliance on the neutrality of the relevant policy:

Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual … because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious … practice,” it is no response that the subsequent “fail[ure] … to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

Justice Thomas dissented, asserting among other things that “[m]ere application of a neutral policy cannot constitute ‘intentional discrimination.'”

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