Why it matters

In a closely watched case, the U.S. Supreme Court sided with a teenage applicant to Abercrombie & Fitch who sued the company for religious discrimination under Title VII. Instead of accommodating her religious beliefs, Samantha Elauf contended that she was not hired by the national retailer because she wore a hijab to a job interview. A federal district court granted summary judgment for Elauf, but the Tenth Circuit Court of Appeals reversed, holding that the burden rests on an applicant or an employee to initially inform an employer of the religious nature of his or her conflicting practice and the need for accommodation. Elauf appealed to the Supreme Court, which granted certiorari given the split among the federal circuits (while the Tenth Circuit joined the Third, Fourth, Seventh, and Eighth, a line of contrary authority could be found in the Ninth and Eleventh Circuits). In an 8-1 opinion authored by Justice Antonin Scalia, the Supreme Court reversed. “Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has ‘actual knowledge’ of the applicant’s need for an accommodation,” the Court wrote. “We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” The employee-friendly holding leaves employers with what the majority characterized as a “straightforward” rule: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Detailed discussion

Samantha Elauf applied for a job at Abercrombie Kids in Tulsa, Oklahoma. During her two interviews, Elauf wore a hijab, or headscarf. At no point did she inform the employer that she was a practicing Muslim or ask if the headwear would be an issue.

Abercrombie declined to hire Elauf because of the hijab, which conflicted with the company’s “Look Policy,” the retailer’s dress code for employees intended to promote and showcase the Abercrombie brand. On behalf of Elauf, the Equal Employment Opportunity Commission (EEOC) brought suit against the retailer, alleging religious discrimination in violation of Title VII.

A federal district court granted summary judgment in favor of Elauf and the EEOC. In a damages-only jury trial, the plaintiff won $20,000. But in a 95-page decision, the Tenth Circuit Court of Appeals reversed, ruling that Elauf failed to set forth a prima facie case of discrimination because she had not requested a religious accommodation.

The holding broadened the split in the federal appellate courts, and when Elauf filed a writ of certiorari, the U.S. Supreme Court agreed to hear the case.

Reversing the Tenth Circuit, the majority found that Title VII’s prohibition on religious discrimination does not apply only when an applicant has informed the employer of his or her need for such an accommodation.

Abercrombie told the justices that applicants cannot demonstrate disparate treatment under the statute without first showing that an employer had “actual knowledge” of the need for an accommodation. “We disagree,” Justice Scalia wrote. “Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

Importantly, Title VII does not impose a knowledge requirement as other anti-discrimination statutes do, the justices said. The Americans with Disabilities Act, for example, defines discrimination to include an employer’s failure to “make reasonable accommodations to the known physical or mental limitations” of an applicant.

“Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge,” the Court explained. “Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, 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.”

Justice Scalia said this reading of the statute generated a straightforward rule for employers: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

“For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays,” the Court wrote. “If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

The justices rejected the Tenth Circuit formulation that placed the burden on applicants, an approach which “asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence.”

While a request for accommodation or an employer’s certainty that the practice exists may make it easier to infer motive in a Title VII case, “it is not a necessary condition of liability,” the Court added.

Abercrombie’s alternative argument that an employer’s neutral policy cannot constitute intentional discrimination similarly failed to sway the justices.

“Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices,” the Court said. “Rather, it gives them favored treatment, affirmatively obligating employers not to fail or refuse to hire or discharge any individual … because of such individual’s religious observance and practice. An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an ‘aspec[t] of religious … practice,’ it is no response that the subsequent ‘fail[ure] … to hire’ was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”

Justice Samuel Alito authored a concurring opinion, writing separately that he found “ample evidence” in the record to support a finding that Abercrombie knew that Elauf was a Muslim and she wore her headscarf for a religious reason, necessitating the reversal of the Tenth Circuit’s summary judgment ruling in the company’s favor.

In a dissenting opinion, Justice Clarence Thomas staunchly defended the position that “[m]ere application of a neutral policy cannot constitute ‘intentional discrimination,’ ” arguing that the case was actually one of disparate impact.

“To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith,” he wrote. “But that is a classic case of an alleged disparate impact. It is not what we have previously understood to be a case of disparate treatment because Elauf received the same treatment from Abercrombie as any other applicant who appeared unable to comply with the company’s Look Policy.”

To read the opinion in EEOC v. Abercrombie & Fitch, click here.