In a decision issued on June 1 [pdf], the U.S. Supreme Court held that a job applicant alleging disparate treatment by a hiring employer only must show “that his need for an accommodation was a motivating factor in the employer’s decision,” and not that the employer had actual knowledge of the applicant’s need for a religious accommodation.  The Court’s decision, styled Equal Opportunity Employment Commission v. Abercrombie & Fitch Stores, Inc., confirms that an employer violates Title VII by rejecting an applicant out of a desire to avoid making a reasonable religious accommodation, even if the employer has only an “unsubstantiated suspicion” that an applicant may, in the future, request one.

As we reported in November 2014, the case arose after the complainant, Samantha Elauf, was refused a job at an Abercrombie store because her hijab, a head scarf worn by some Muslim women, would have violated the company’s “Look Policy,” which barred employees from wearing head coverings.  Although Elauf’s hijab was never explicitly discussed during her interview, discovery revealed that Abercrombie’s interviewer assumed Elauf was a Muslim and that she would continue to wear the head scarf during working hours.

Abercrombie claimed that it was under no duty to offer a religious accommodation to an applicant unless the applicant explicitly informed the company of the conflict between its policies and her religious beliefs and requested an exception to the company’s rules.  Although the Tenth Circuit Court of Appeals agreed with Abercrombie’s interpretation of the law, the Supreme Court ultimately rejected it.

The Supreme Court held that an employer “may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”   The Court noted that the inquiry is not based on the employer’s knowledge, but rather the employer’s motive.  Thus, an “employer who has actual 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 suspects that an applicant will require an accommodation because of her religion and the employer’s “desire to avoid the prospective accommodation is a motivating factor in his decision” not to hire the applicant does violate Title VII.

The case has been remanded to the Tenth Circuit for reconsideration.  Note that Abercrombie settled with Elauf prior to today’s Supreme Court decision, and has also changed its Look Policy to allow women to wear headscarves for religious reasons.