The Supreme Court recently held in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., that a company must accommodate religious practices of employees and job applicants.
In 2008, 17-year-old Samantha Elauf applied for and was rejected for a sales job at Abercrombie because her head scarf, which Muslim women wear for religious reasons, went against the store’s “look policy.” Elauf wore a headscarf, or hijab, every day, and did so in her interview in addition to her Abercrombie-style clothing. Elauf did not mention her headscarf during her interview and did not indicate that she would need an accommodation from Abercrombie’s Look Policy. Her interviewer likewise did not mention the headscarf, though she contacted her district manager, who told her to lower Elauf’s rating on the appearance section of the application, which lowered her overall score and prevented her from being hired.
The EEOC sued Abercrombie on Elauf’s behalf and claimed that the company had violated Title VII by refusing to hire Elauf because of her headscarf. Abercrombie argued that its decision not to hire her was not because she is Muslim, but because wearing anything on the head was not allowed in the dress code at the time, because Elauf had a duty to inform the interviewer that she required an accommodation from the Look Policy, and because the headscarf was not the expression of a sincerely held religious belief.
The court rejected Abercrombie’s argument that someone like Elauf cannot show that she was the victim of discrimination unless she can demonstrate that the employer had “actual knowledge” that she was wearing the scarf for religious reasons and would need the store to accommodate her. Instead, the court ruled that Elauf only had to show that her need for Abercrombie to accommodate her religious beliefs was a “motivating factor” in its decision not to hire her.
The court stated, “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.” The court reasoned that the disparate-treatment provision of Title VII does not contain a knowledge requirement but rather forbids certain motives, regardless of the employer’s knowledge about the applicant. If the applicant can show that the employer’s decision not to hire was based on a desire to avoid having to accommodate a religious practice, then the employer has violated Title VII.
The court also held that Title VII does not demand mere neutrality; instead it creates an affirmative duty to accommodate religious practices. Abercrombie argued that it could not have intentionally discriminated against Elauf because its “no headwear” policy applied to everyone, regardless of religion. Title VII, the court explained, does not require an employer to be neutral when it comes to religious practices. Instead, the law gives religious practices “favored treatment,” which means that policies which would otherwise be neutral must “give way to the need for an accommodation” of an applicant’s religious practices.
The full opinion of the court, written by Justice Scalia, can be found here.