Executive Summary: The U.S. Supreme Court recently held that an employer cannot escape liability for religious discrimination under Title VII by arguing that it did not have actual knowledge of an individual's need for a religious accommodation. Reversing the Tenth Circuit's decision in favor of the employer, in EEOC v. Abercrombie & Fitch Stores, Inc., the Court held that an employer "may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."

Title VII's Prohibition on Religious Discrimination

Title VII of the 1964 Civil Rights Act prohibits discrimination on a number of grounds, including religion. Specifically, it prohibits an employer from failing, refusing to hire, discharging or otherwise discriminating against an individual because of that person's religion (intentional discrimination). It also prohibits unintentional discrimination, such as where an apparently neutral policy or practice has a disproportionately negative impact on an individual because of that person's religion. Title VII defines "religion" to include all aspects of religious observance and practice.  Thus, the intentional discrimination provision prohibits an employer from not hiring an applicant "because of" such individual's religious observance and practice.  The employer has a defense under Title VII if it can show that accommodating the religious practice would create an "undue hardship."

EEOC v. Abercrombie & Fitch

In Abercrombie, the EEOC filed a lawsuit against the company after it refused to hire an applicant who wore a headscarf. The company, which operates several lines of clothing stores, each with a distinctive "style," had a dress code in place (its "Look Policy') designed to ensure employees dressed consistently with the image it sought to project. The Look Policy prohibited employees from wearing "caps" because they were too informal for the company's desired image. Although the applicant, who is Muslim, never told the company that she wore the headscarf as part of a religious practice, there was evidence that the store managers believed she did. There was also evidence that they did not hire her because they determined the headscarf would violate the Look Policy.

A federal trial court ruled in favor of the EEOC on its claims that the company's policy violates Title VII, but the Tenth Circuit reversed this decision. The Tenth Circuit held there could be no liability for failure to accommodate a religious practice if the employer did not have actual knowledge that the individual needed an accommodation.

The Supreme Court rejected this analysis, holding that an applicant must only show that the need for a religious accommodation was a motivating factor in the employer's decision. The Court noted that unlike other laws, such as the Americans with Disabilities Act, which only requires employers to accommodate the known disabilities of an individual, Title VII contains no knowledge requirement. Instead, the Court held that Title VII's prohibition on intentional discrimination prohibits employers from taking actions based on certain motives and emphasized that "motive and knowledge are separate concepts."

Employers' Bottom Line: Although it appears that Abercrombie has removed any actual knowledge requirement that might have existed under Title VII, it is important to note that a footnote in the majority opinion indicates that knowledge may still play a major role in Title VII disputes going forward.  The Court stated that it is arguable that the motive requirement is not met "unless the employer at least suspects that the practice in question was a religious practice." The Court also noted that its decision does not address the issue of when liability will attach if an employer does not know that a religious accommodation is needed, because in this case there was evidence that the employer knew, or at least suspected, that the scarf was worn for religious reasons. Thus, the case serves to illustrate the dangers of making assumptions regarding an individual's religious beliefs or practices and acting in furtherance of those assumptions.

Additionally, the Court's statement that Title VII does not require "mere neutrality" with regard to religious practices, but instead "gives them favored treatment" by "affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual's' ‘religious observance and practice'" should encourage employers to evaluate their dress code policies to ensure they are justified by a legitimate, nondiscriminatory business reason. While the Court did not address the issue of undue hardship, its emphasis on the favored treatment to be afforded religious practices could be an indication it will closely scrutinize an employer's undue hardship defense.