During our labor and employment law update in April, we had mentioned a pending Supreme Court case, EEOC v. Abercrombie & Fitch Stores, Inc. A decision in that case was issued on June 1, and it can be briefly summarized as follows:

Samantha Elauf, a practicing Muslim who wore a headscarf as part of her religious observance, applied for a sales job with Abercrombie & Fitch (Abercrombie). Elauf was rated as qualified for employment by an Abercrombie hiring manager, but the manager also inquired of her superiors whether Elauf’s headscarf would violate Abercrombie’s dress code, called its “Look Policy,” which prohibited all caps and other headwear. The hiring manager also expressed her belief that Elauf wore the headscarf for religious reasons. When Elauf was not hired, she complained to the EEOC which filed suit on her behalf for religious discrimination.

The federal Court of Appeals in Denver (10th Circuit) held that there could be no Title VII violation because Elauf had never specifically asked for an accommodation and “an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation.”

The Supreme Court reversed, holding that an applicant need not show actual knowledge of the need for an accommodation; rather, it is sufficient that the “need for an accommodation was a motivating factor in the employer’s decision.” Because it was undisputed that Abercrombie at least suspected a religious accommodation issue existed, the fact that Elauf did not ask for an accommodation (or point out her need for one) did not defeat her claim.

This was a most unsurprising decision, and it did not effect a significant change in the law. The primary practical lesson of the case is that if circumstances would put a reasonable person on notice that a religious accommodation may be necessary to enable an applicant (or employee) to perform the job, the employer cannot merely rely on the applicant’s failure to raise the accommodation issue. Rather, the employer should tactfully inquire further (e.g., “Why are you unable to work on Saturdays?”, or “Why can’t you comply with our safety face mask seal no beard rule?” or “Can you fulfill all of the requirements in the job description?”). Frankly, asking these questions during an interview are a matter of good HR practice and common sense in any event.

As a necessary predicate to its decision, the Court reaffirmed that, unlike most other areas of disparate treatment law, policies that appear to be neutral may not be a defense to religious accommodation claims. This follows inexorably from the duty to consider reasonable accommodation itself, subject of course to the employer’s undue hardship defense.

Finally, some commentators have made much of the Court’s declining to decide the question whether an employer can ever be liable in the case where it has no basis for even suspecting that religious accommodation may be at issue. This concern seems unduly alarmist. The Court was merely following its longstanding practice of not deciding issues not presented by the case before it. Moreover, it appears obvious from the structure of the opinion, where in a footnote the majority opinion states, “…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…,” and Justice Alito’s concurrence that some level of intent (in this case, motivating factor) will be a necessary prerequisite to liability.