Refining the legal standards to show religious discrimination under Title VII of the Civil Rights Act, the Supreme Court has held that a rejected applicant for employment must show only that his or her need for religious accommodation was a motivating factor in the employer’s decision. The applicant need not show that the employer had knowledge of the applicant’s need. An employer who acts in order to avoid accommodating an individual protected by Title VII may violate the law even if it “has no more than an unsubstantiated suspicion that an accommodation would be needed,” the Court said. EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86 (June 1, 2015).

The applicant was a Muslim woman who, in keeping with her religious practice, wore a head scarf to her interview. The employer had a policy banning employees from wearing any kind of headgear while on the job. She claimed that in denying her employment, the employer was motivated by her need for an accommodation to permit her to wear a head scarf, constituting disparate treatment in violation of Title VII.

The Supreme Court held Title VII does not require showing that the prospective employer had “knowledge” of the applicant’s need for religious accommodation before the employer could be held liable for religious discrimination in hiring. According to the Court, Title VII bars prospective employers from acting on certain motives, regardless of the employer’s knowledge. Therefore, the prospective employer cannot make an applicant’s religious practice, confirmed or otherwise, a factor in its employment decisions.

Writing for the majority of the Court, Justice Antonin Scalia said that with respect to religion, an argument that a neutral policy cannot constitute “intentional discrimination” is unavailing. “Title VII,” the Court said, “does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. 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.’” Neutral policies may have to yield to the need for religious accommodation, it said, remanding the case for further consideration consistent with its opinion.

For more on this decision, see “Supreme Court Refines Religious Discrimination Requirements under Title VII to Focus on Employer Motive” at www.jacksonlewis.com

Unlike the Americans with Disabilities Act, where applicants or employees must advise the employer of their need for accommodation to invoke the Act’s protection, applicants or employees under Title VII do not necessarily need to notify employers of their religious-based need for an accommodation. In the case of a rejected applicant claiming discriminatory treatment under Title VII, the employer’s hiring process, along with its relevant policies, may come under scrutiny for signs of an “unsubstantiated suspicion” that the employer would have to offer an accommodation it did not wish to make.