Today the Supreme Court issued a decision in the highly anticipated case of EEOC v. Abercrombie & Fitch. Background on the case is available here, as is access to the “look policy” which we originally discussed here. The question before the Court involved whether the employer or the employee had an affirmative duty to determine whether a religious accommodation may be necessary to accommodate an applicant’s religious practices or observations. In the Abercrombie case, the interviewee wore a headscarf to her interview which violated Abercrombie’s “look policy” which did not allow “hats” at work.

Abercrombie argued that no liability could be found if the Plaintiff were unable to show that the employer had “actual knowledge” that the individual needed an accommodation—or in this case, that Plaintiff must prove that Abercrombie had “actual knowledge” the headscarf was a result of a religious observance or practice. The Supreme Court disagreed finding that an employer’s knowledge was not the factor at issue, but instead a court should review the employer’s motive in making the adverse employment decision. If the employer’s motive was to avoid making any form of accommodation—even if the employer had no knowledge that the need for an accommodation was based off of a religious practice—the employer could be liable under Title VII. Specifically the Court identified the rule as: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Effectively, and the Court admits that there is a hightened burden in disparate treatment religious discrimination claims noting: “Title VII does not demand mere neutrality with regard to religious practices,” but instead requires employers provide “favored treatment” in which “otherwise-neutral policies . . . give way to the need for an accommodation.”

To put this into context, under a different set of facts, if your establishment currently has a policy that requires no facial hair, and an applicant comes in for an interview with facial hair, you cannot base your decision not to hire him on his facial hair—despite your neutral policy not allowing any form of facial hair. There may be no additional indicators that this facial hair is in any way tied to a religious practice or observation—no religious garb, no discussions regarding religious beliefs—instead it may be just as likely that the individual is going for the lumbersexual look. If the individual were maintaining a beard for religious reasons, however, and you chose not to hire him in whole or in part based off his maintenance of facial hair, you would be looking into the face of a Title VII claim that would be difficult to defend based off the High Court’s most recent ruling.