The Supreme Court Clarifies That an Employer’s Motivation Is Determinative in Religious Discrimination Cases
The Supreme Court just reminded employers that acting on perceptions of an individual's protected characteristic is a recipe for trouble. In EEOC v. Abercrombie & Fitch Stores, Inc., the Court held that Title VII does not require an individual to prove an employer knew he or she needed an accommodation to impose liability for religious discrimination. Instead, a protected individual only need show the employer's alleged adverse employment action was motivated in part by the individual's actual or perceived religion or religious practice.
The Court's Decision
The facts of the case are straightforward. Samantha Elauf, a practicing Muslim, interviewed for a retail sales job at an Abercrombie store in Tulsa, Oklahoma while wearing a headscarf. At the time, Abercrombie maintained a "Look Policy" that banned sales employees from wearing "caps," a term undefined by the policy. Elauf and the interviewing manager did not discuss Elauf's religion, her headscarf, the reasons why she wore it, or whether Elauf would violate the Look Policy by wearing the headscarf. The manager concluded Elauf was qualified for the job. Because she was unsure whether wearing the headscarf would violate the Look Policy, the manager sought clarification from her supervisor. She informed the supervisor that she thought Elauf wore the headscarf because of her faith. The supervisor told the manager that the headscarf, and any other headwear, violated the Look Policy and directed the manager not to hire Elauf.
The EEOC sued Abercrombie for religious discrimination under Title VII. The district court granted the EEOC summary judgment on liability and held a trial on damages, eventually awarding $20,000. The Tenth Circuit reversed and granted summary judgment to Abercrombie. The Tenth Circuit held that an employer cannot be liable for failing to accommodate a religious practice unless and until the applicant or employee informs the employer of the need for an accommodation.
The Supreme Court reversed the Tenth Circuit, finding that Title VII does not impose this sort of knowledge requirement. According to the Court, the critical inquiry under Title VII is whether the applicant or employee's religion or religious practice motivated the employer's decision. Justice Scalia's majority opinion notes that the individual does not have to actually belong to a religion or engage in a particular religious practice for the employer to incur liability. Under Abercrombie, if an employer takes an adverse action based on the incorrect assumption that an applicant or employee needs an accommodation, the decision is improperly motivated.
The Court concluded that there was sufficient evidence that Elauf's religion motivated the decision not to hire her, such that summary judgment for the employer was inappropriate. Yet the Court noted that determining an employer's motivation in taking an adverse action may not always be easy. The Court failed to provide any guidance as to what evidence is sufficient to create a genuine issue of material fact that the employer "suspected" an individual's particular practice may be religious. Justice Scalia stated in a footnote that "it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice." This question will be left to the lower courts.
The Court was also careful to distinguish Title VII from the Americans with Disabilities Act (ADA) on the requirement of proving an employer's knowledge of the need for an accommodation. The Court noted that the ADA, unlike Title VII, requires individuals to prove the employer knew of the individual's need for an accommodation. The Abercrombie decision thus should not be read to directly affect employers' handing of requests for disability-related accommodations.
Implications for Employers
Abercrombie may not have direct, ground-breaking consequences. In 2014, only four percent of charges filed with the EEOC alleged religious discrimination.
But the decision is nonetheless significant. There are three takeaways for employers. First, it reinforces the wisdom of training managers to not rely on their perceptions of an applicant's or employee's protected characteristics, and to instead seek assistance from human resources before making employment decisions. Second, while employers must avoid asking applicants or employees questions about their religion or religious practices, the Abercrombie decision encourages employers to clearly identify all requirements of jobs for applicants and employees. Doing so allows protected individuals to self-identify any requirement that may conflict with their religious beliefs or practices and request an accommodation. Finally, Abercrombie is clear that employers cannot flatly deny requests for religious accommodations because they conflict with a facially neutral company policy. The employer must instead analyze whether providing the accommodation will cause an undue hardship, and then provide the accommodation if no such hardship exists.
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