EEOC v. Abercrombie & Fitch Stores, Inc.: SCOTUS rules for motive over knowledge

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Editor’s Note: This is an update to Regan Gatlin’s previous article Religious or Not? – How the Notice Requirement Impacts Employment Decisions.

In an ongoing battle of court decisions, the Supreme Court finally ruled on the much-anticipated EEOC v. Abercrombie & Fitch Stores, Inc. intentional religious discrimination case.  On June 1, 2015, the Supreme Court ruled, in an 8-1 decision, in favor of Samantha Elauf, a practicing Muslim.

When she was denied employment at Abercrombie & Fitch, she filed a lawsuit alleging intentional religious discrimination under Title VII…

Samantha Elauf was a seventeen-year-old teenager, who applied for a job as a sales associate, or a model, for an Abercrombie & Fitch retail store in her area.  As a model, Elauf would be required to comply with Abercrombie’s strict “look policy.”  She wore a hijab, or a headscarf that she wears for religious purposes, to her interview and was subsequently denied employment.  When she was denied employment at Abercrombie & Fitch, she filed a lawsuit alleging intentional religious discrimination under Title VII of the Civil Rights Act of 1964.

The Tenth Circuit Court of Appeals reversed the decision of the Federal District Court and held that an employer must be provided notice of a need for a religious accommodation before it can be required to provide such accommodation and therefore potentially be held liable under Title VII.  This decision was appealed by the EEOC to the Supreme Court.  The Tenth Circuit decision was overruled when the Supreme Court decided that there is no knowledge requirement for a Title VII claim for disparate treatment, or intentional discrimination.  The Court held that an applicant for employment need only show that her need for an accommodation was a motivating factor in the employer’s decision to not hire or to fire that employee.

The Supreme Court, though, agreed with the EEOC stating that an applicant only needs to show that the need for an accommodation was a motivating factor in the employer’s decision not to hire her

The Supreme Court ruled on the issue of whether the prohibition against refusing to hire an applicant for employment applies only when the applicant has informed the employer of their need for an accommodation.  In the current case, Elauf did not inform the store or her interviewer of her need to wear her hijab for religious purposes during work.  Elauf did wear the hijab to the interview, but did not give any other indication that she would need to wear it every day during work or the purpose for wearing the hijab.

Abercrombie & Fitch argued primarily that an applicant cannot show disparate treatment without first showing that the employer had actual knowledge of the need for an accommodation.  The Supreme Court, though, agreed with the EEOC stating that an applicant only needs to show that the need for an accommodation was a motivating factor in the employer’s decision not to hire her.

An employer is not permitted to fail to hire an applicant because of such individual’s religion or religious practices, including their need for an accommodation.  The Supreme Court equates the “because of” element of the prohibition to a traditional “but-for causation” standard.  This essentially means when considering a disparate treatment claim, the employer cannot make its decision by thinking, “but for the applicant needing an accommodation due to her religion, I would hire her.”

The Supreme Court elaborates further and relaxes this standard a bit more. The standard in a Title VII disparate impact claim is to prohibit making a protected characteristic a motivating factor in a decision to hire or fire an employee or applicant for employment.

Title VII does not have a knowledge requirement

The Supreme Court continues in its analysis of Title VII disparate impact requirements stating that, significant to this case, Title VII does not have a knowledge requirement.  While some antidiscrimination statutes, such as the Americans with Disabilities Act of 1990, do require an employer to be on notice and have actual knowledge of the need for accommodation; this is not the case for Title VII after the EEOC v. Abercrombie decision.

Title VII is distinguished in that the intentional discrimination provision actually prohibits motives, regardless of an employer’s actual knowledge.  The Court draws an analogy in that an employer, who has actual knowledge of the need for an accommodation, does not necessarily violate Title VII in refusing to hire the applicant if the motive of the employer is not to avoid providing an accommodation.  This situation is different from that in which an employer, whose motive is to avoid providing an accommodation for an applicant, decides not to hire him.  In that case, the employer would be liable under Title VII for intentional discrimination.

Essentially, an employer is prohibited from making an applicant’s religious practice, regardless of whether it is confirmed or assumed or even actual, a factor in an employment decision at all.  Whether there is a request for accommodation or if it has been confirmed that an accommodation is necessary, these may be helpful in inferring a motive to avoid the accommodation, but are not necessary for liability under the statute.

Since religion encompasses practices as well, and is not simply limited to belief, it cannot be accorded disparate treatment and therefore must be accommodated

Abercrombie further posed the question whether this should be applicable to disparate-impact claims instead of disparate-treatment claims. Disparate treatment claims are claims where an employee is alleging he or she was treated worse than others based on a protected characteristic.  Such a case would be where an employee is claiming she is not being promoted because she is a female.  In disparate treatment claims, the employer must articulate a legitimate, non-discriminatory reason for its actions.

Disparate impact claims, on the other hand, are claims where an employee claims that a workplace policy or test for employment or promotion does not have a discriminatory intent, but has a discriminator effect on a particular group because of a protected characteristic.  Such a case would be where an African American applicant for employment sues an employer because he, along with most of the other African Americans who took the test, failed the test, and as a result of the test all but one person who received the job was white.  In that case, the test might cause a disparate impact on African Americans.  In disparate impact cases, the employer must prove that the practice, or in the example, the test, is job-related for the particular position applied for and consistent with a business necessity.

The Court stated that because of Congress’ definition of “religion” being so broad, Title VII’s religious-discrimination reach encompasses much more.  Since religion encompasses practices as well, and is not simply limited to belief, it cannot be accorded disparate treatment and therefore must be accommodated.

Title VII does not demand neutrality with regard to religious practices . . . but instead gives religious practices a favored status.

Abercrombie next argues that their policy is neutral, and as such, their decision not to hire Elauf was simply them following their neutral policy.  Since Abercrombie followed their neutral policy and did not allow for an exception in this case, as it does not do for others who wish to wear hats to the store, they argue there is no intentional discrimination.

The Supreme Court shuts this argument down by stating that Title VII does not demand neutrality with regard to religious practices, in that they cannot be treated any worse than other religious practices, but instead gives religious practices a favored status.  Rather than allowing an employer to treat all religious practices the same, employers are obligated not to fail to hire an applicant or fire an employee because of their religious practices or beliefs.  As such, Title VII requires a policy that would otherwise be neutral to be set aside in favor of religious accommodations.

The Supreme Court leaves open, in a footnote of the opinion, the question of whether an employer must at least suspect religious practice before they can be held liable under the statute.  Not only is this remaining inquiry left for consideration, but also the inquiry of why religious accommodations require a greater level of accommodation requirements than others such as disability status or neutral policy compliance.

Justice Alito is most concerned with the burden of proof implied by the majority’s opinion

In his concurring opinion, Justice Alito poses the question that based on this decision, it would be completely irrelevant and worthy of no consideration whether Abercrombie had any minute thought that Elauf was a Muslim and that she needed an accommodation for her hijab.  However, Justice Alito is most concerned with the burden of proof implied by the majority’s opinion.

The opinion states that the plaintiff has the burden of proving that the employer wished to avoid making an accommodation and therefore discriminated against her.  However, this would cause an undue hardship on the plaintiff.  Instead, Justice Alito concurs and states that he believes it is the plaintiff’s responsibility to show the employer took an adverse employment action against her because of a religious observance or practices.  But, it is then the employer’s burden to plead and prove the defense, that they did not have a discriminatory motive in firing or not hiring the employee.

The dissent claims that this decision poses problems for employers who make adverse employment decisions without having any idea the employee is religious

In the dissent, Justice Thomas takes a more employer friendly approach to the Title VII requirements for a disparate impact claim.  The dissent claims that this decision poses problems for employers who make adverse employment decisions without having any idea the employee is religious.  He states that it has been held in the past that application of a neutral policy does not constitute intentional discrimination.  This is, Justice Thomas elaborates, because the statutes are to prevent employers from treating a particular person less favorably because of their protected trait, such as religious beliefs and practices.

But upon application of the Supreme Court’s decision here, the result will be that at times, employers will create exceptions to their neutral policies for those with religious accommodation needs as opposed to those who do not have religious accommodation needs, but wish to be excepted from a neutral policy.  In essence, Justice Thomas claims that this decision changes and expands the meaning of intentional discrimination to now prohibit an employer to refuse to give favored treatment to a religious applicant.

The dissent warns of potential issues with this decision

Justice Thomas presents an analogy where an employer has a neutral policy preventing beards.  An applicant’s religion requires him to have a beard, and because he is not willing to shave his beard, now the employer, in order to avoid being held liable under Title VII for religious discrimination, must make an exception for this applicant.  This is the case now, even though the employer did not refuse to hire the applicant because of his religion or the religious purpose for the beard, but simply because he would not be able to comply with the neutral policy preventing beards.

The dissent warns of potential issues with this decision.  It is possible that any decision where an employer makes an adverse employment action based on a practice or circumstance that happens to be religious, will be in violation of Title VII even when the employer had no idea the practice or circumstance was religious in nature.

So, what can be expected?  It is uncertain. 

This case was a winner for employees who believe they have been discriminated against based on their religious beliefs or practices.  But the question that follows is where does this leave us?

Employers should now be cautious of every applicant they interview so as to pick up clues and signs as to whether they may be religious and therefore need an accommodation.  Employers are unable to make an employment decision while considering a person’s religion.  If the employee or applicant notifies the employer of the need for an accommodation for religion, the employer is unable to make that need for an accommodation the basis for the adverse employment decision.  Instead, the employer must have another reason for not hiring the applicant or performing the adverse employment option, and must be able to prove that when and if the decision is challenged.

However, will this lead to employer making assumptions about an applicant’s religious beliefs or practices during an interview?  Do we want our employers to make assumptions about an applicant’s religious beliefs or practices?  Isn’t that the purpose of the Civil Rights Act and Title VII – to make it so that employers do not consider a protected class in its employment decisions?  How is an employer to accommodate a religious practice need or even be able to determine ahead of time whether they can make such an accommodation if they are unaware of the need for an accommodation?

So, what can be expected?  It is uncertain.  However, it is likely more lawsuits will arise regarding employees or applicants who believe they have been discriminated against in order for more details and elaborations on this subject.  Until then, in a Title VII religious discrimination claim, an employer’s actual knowledge of an applicant’s religious belief will be irrelevant to whether their motive generally was to avoid providing a religious accommodation.