U.S. Supreme Court Rules That a Request for a Religious Accommodation Is not Required to Maintain a Title VII Claim

On June 1, 2015, the United States Supreme Court issued its opinion on the much anticipated Equal Employment Opportunity Commission (EEOC) v. Abercrombie & Fitch Stores, Inc., holding that an employee is not required to specifically request a religious accommodation in order to maintain a Title VII claim against their employer.

In Abercrombie & Fitch, an applicant (Samantha Elauf) was denied a job at one of Abercrombie & Fitch Stores, Inc.’s retail stores because she wore a hijab — a veil or head covering worn by Muslim women in public — and Abercrombie & Fitch’s “Look Policy” prohibited certain kinds of clothing, including caps. When Elauf was initially interviewed, she received a total rating high enough to be hired. However, when the district manager realized Elauf wore a hijab, he lowered her “appearance score,” bringing her below the required total rating to be recommended for hire. Elauf was later told by a friend who worked at that Abercrombie & Fitch store that she was not hired because she wore a hijab.

The EEOC sued Abercrombie & Fitch claiming it violated Title VII by not hiring Elauf because she wore a hijab. Despite the fact Elauf did not request an accommodation for her hijab, the district court ruled in favor of the EEOC and awarded Elauf $20,000. On appeal, the Tenth Circuit Court of Appeals reversed, finding Abercrombie & Fitch could not be liable under Title VII because Elauf did not request or provide any other direct notice of her need for a religious accommodation.

The U.S. Supreme Court, however, rejected the Tenth Circuit’s notice standard, holding that Title VII does not require that the employer have “actual knowledge” of the employee’s need for a religious accommodation. Specifically, the Supreme Court found that religious accommodation claims can be brought as disparate treatment claims, rather than disparate impact claims, and for such claims, “[a]n employer may not make an applicant’s religion practice, confirmed or otherwise, a factor in an employment decision.” Therefore, the test is whether the employer has sufficient information to be aware that an individual’s religious belief or practice conflicts with requirements in applying for or performing a job, not whether it had actual notice.

This holding imposes a significant burden on employers making employment decisions to determine, on their own, whether or not something is a “religious practice.” Now, even a non-obvious, unexpressed religious need for an accommodation may expose employers to unlawful discrimination claims under Title VII. And unfortunately, the Supreme Court did not provide a bright line rule for what constitutes “knowledge sufficient to require accommodation.”

In light of this decision, employers should consider implementing the following strategies to avoid religious accommodation claims:

  • Be cognizant of potential “religious practices” that may conflict with company policies. Do not just wait for a direct request for a religious accommodation. Train managers, supervisors, and anyone else making employment decisions to proactively identify “religious practices” that conflict with company policy and make sure they know where to go for additional guidance regarding religious accommodation issues.
  • Require that all accommodation decisions be made and/or reviewed by those who know the law; understand company policy; and are familiar with the company’s past decisions regarding religious accommodations.
  • While remembering that inquiries regarding an applicant or employee’s religious beliefs may be problematic, speak with employees and applicants before making assumptions about their religious beliefs. Even if someone appears to be following a religious practice, like wearing a headscarf, it does not mean they won’t conform to a workplace policy if necessary. Employers should engage with applicants/employees to discuss and attempt to resolve potential conflicts between company policy and presumed religious practices before making employment decisions.