The Supreme Court issued its decision in what has become known as the "headscarf" case, EEOC v. Abercrombie & Fitch. The ruling makes it clear that Title VII is violated when intentional discrimination is the motive for adverse action.

Many will recall that a job applicant, Samantha Elauf, applied for a job with Abercrombie and was ultimately denied the position because she wore a headscarf that did not comply with Abercrombie's Look policy. The question before the Supreme Court was whether this violated Title VII. Writing for the majority, Justice Scalia explained that in order for there to be liability, religious discrimination must be the motivating factor for the adverse employment decision.

Simply having knowledge of the need for an accommodation or a suspicion that an accommodation may be requested for religious reasons is insufficient to substantiate a violation of Title VII. However, an employer who acts "with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed." EEOC v. Abercrombie & Fitch, 575 U.S. ___ (2015).

The Court reasoned that impinging on religious practice is a disparate treatment, as opposed to disparate impact, claim because the statutory definition of religious practice covers all aspects of religious observance, practice and beliefs.This distinction affects the analytical approach, burden shifting of McDonnell-Douglasfor disparate treatment vs. effects of employment practice for disparate impact. Forrecent discussion by Supreme Court of distinction in analysis see Young v. UPS, 575 U.S.___(2015).

Practitioners should ask themselves whether the need for an accommodation was a motivating factor in the adverse decision. The Court reversed the 10th Circuit's decision in favor of Abercrombie & Fitch, and remanded the case for further proceedings.