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Supreme Court Decides Abercrombie Case

Ms. Elauf had applied for a position in the Abercrombie store in Tulsa, Oklahoma and was interviewed by the assistant store manager there while wearing a headscarf. The assistant store manager used the company’s system for evaluating employees and determined that she was qualified to be hired. Ms. Elauf never said that she wore the headscarf for any particular reason. The assistant manager was concerned, however, because she knew that wearing the headscarf conflicted with the company’s Look Policy. So, the assistant manager sought guidance from her store manager, and then ultimately from the district manager, who confirmed that wearing the headscarf violated the Look Policy, as would any headwear, “religious or otherwise.” Critically, the assistant manager told the district manager that she believed Ms. Elauf wore the headscarf for religious purposes. Ms. Elauf was not hired.

 The EEOC brought this claim on behalf of Ms. Elauf in federal court in Oklahoma. The district court granted summary judgment in favor of the employee, and after a trial on damages awarded her $20,000. The Tenth Circuit, which includes the federal district court in Kansas, reversed the Oklahoma district court ruling and awarded Abercrombie summary judgment. The Tenth Circuit found that an employer is not liable under Title VII for failing to accommodate a religious practice unless and until the applicant makes a request --- and provides the employer with actual knowledge of – their need for an accommodation. The matter was appealed to the Supreme Court, which reversed and remanded the Tenth Circuit decision. 
As expected, Abercrombie argued that an applicant cannot prove disparate treatment without first showing that the applicant specifically requested an accommodation, giving the employer actual knowledge of the applicant’s need for an accommodation. The Court was not convinced, however, that pleading a Title VII claim required the plaintiff to allege that the employer had actual knowledge of the need for an accommodation gleaned from a specific request obtained from the applicant.
In analyzing the case, the Supreme Court discussed and analyzed whether a rejected applicant had to show that the employer failed to hire her because of the applicant’s religion. In this regard, the Court stated that “the intentional discrimination provision [of Title VII] prohibits certain motives, regardless of the state of the actor’s knowledge.” Thus, for the purpose of asserting claims of religious discrimination under Title VII, because of means that an employee’s religious practice cannot be a motivating factor in the employer’s decision not to hire.
In what arguably appears to be an expansion of Title VII, the Court said that an employer can be held liable even if the employer “has no more than an unsubstantiated suspicion that accommodation would be needed.” The majority then said that Title VII gives employees 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.” In other words, an otherwise-neutral employer policy gives way to the requirement that the employer accommodate the religious practice. Stated differently, a person’s religious practice, whether confirmed or just suspected, cannot be a factor in employment decisions.
The saving grace for employers is found in a critical footnote where the Court points out that while actual knowledge gleaned from an applicant’s specific request is not required, a charging party cannot establish that an applicant’s religious practice was a motivating factor unless the party can show at a minimum that the employer suspected that the practice in question, here the wearing of a headscarf, is a religious practice. Relying on statements in the record, the majority found that Abercrombie did know, or at least suspected, that Ms. Elauf wore her headscarf for religious purposes.
What Employers Should Know
While pleading a prima facie case may now be easier, the Abercrombie decision did not significantly change the steps employers should take related to the accommodation of an employee or applicant’s religious practices.
  • Employers should continue to instruct their managers to refrain from initiating discussions regarding an applicant’s religion or religious practices during job interviews. These types of questions can only take the manager down a path for an uncomfortable colloquy and serve as ammunition for claims of discrimination. Instead, if your job requires specific dress and attendance policies, discuss those policies with applicants directly and ask the applicant if they can meet the job requirement. If they say no, you can ask why and give them the opportunity to share with you the need for a religious accommodation. You can then properly engage in the necessary analysis of whether an accommodation would create an undue hardship to your business.
  • Employers should make sure that all managers, particularly those involved in hiring decisions, understand that they cannot reject an employee or job applicant’s request for an accommodation out of hand. The law requires that each request be given serious consideration.
  • The most important take away from the Abercrombie decision is that managers who have not actually discussed an accommodation with a job applicant should not reject the applicant simply because they think the potential employee may need an accommodation or that an accommodation might be slightly inconvenient. If a manager suspects an accommodation is needed, even without knowing it is, perform the necessary analysis and document that you have done so.

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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