On June 1, 2015, the United States Supreme Court issued its decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14-86, and held an employer does not have to receive a request for accommodation or have actual knowledge of an applicant’s need for a religious accommodation in order to violate Title VII. This decision could have far-reaching implications related to hiring and accommodation practices.
The EEOC sued Abercrombie on behalf of Samantha Elauf, a practicing Muslim, and alleged that Abercrombie refused to hire Elauf because of her religion, in violation of Title VII of the Civil Rights Act of 1964. Elauf applied for a position with Abercrombie and was interviewed by the store’s assistant manager. Elauf wore a headscarf, or hijab, to the interview, and the assistant manager (who determined that Elauf was qualified for the position, but also believed that Elauf wore the headscarf because of her faith) sought guidance from the manager and district manager. Abercrombie has a “Look Policy” that governs its employees’ dress and prohibits “caps.” The district manager said the headscarf (like any other headware, religious or otherwise) would violate the Look Policy and directed the assistant manager not to hire Elauf.
The District Court granted summary judgment for the EEOC as to liability. The Tenth Circuit reversed and awarded Abercrombie summary judgment. The Tenth Circuit concluded that a reasonable religious accommodation is required only after an applicant or employee informs an employer of a religious practice that conflicts with a work requirement and of the need for an accommodation. Because the Abercrombie managers did not have actual knowledge of Elauf’s need for a religious accommodation, the Tenth Circuit held, no accommodation was required under Title VII. The Supreme Court disagreed.
While Abercrombie urged the Court to focus on Abercrombie’s knowledge, the Court held instead that it was Abercrombie’s motivesthat mattered, writing, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” In other words, there is no requirement that the employer have knowledge of an actual conflict between a work rule and the applicant’s religious practice for there to be liability, so long as a desire to avoid accommodating a possible religious practice was a motivating factor behind the employment decision.
Abercrombie argued in the alternative that the EEOC’s claim could only be properly stated as a disparate impact claim. The Court disagreed and held that Title VII requires more than a neutral policy that does not treat religious practices worse than other practices. Instead, Title VII gives religious practices “favored treatment.” Employers have an affirmative obligation to not discriminate, and otherwise neutral policies must give way to the need for religious accommodation.
The Bottom Line. The important lesson here is that simply following an apparently neutral policy will not insulate employers from liability for failure to accommodate a religious practice. The Court raised the bar on what is expected of employers. Even without a request for accommodation or actual knowledge of such a need, employers may be liable under Title VII. All that is required is that the employer at least suspects the practice in question is a religious practice and that it may be accommodated without undue hardship. Employers should evaluate their policies and conduct training for managers and hiring personnel to guard against claims that may arise as a result of this decision.
 In September 2013, Abercrombie agreed to pay settlements totaling $71,000 after the EEOC filed two religious discrimination lawsuits alleging that Abercrombie fired a Muslim teenager for not removing her hijab and that a Muslim applicant was denied a job after her interviewer asked about her hijab. Abercrombie has updated its Look Policy to allow headscarves.