The Supreme Court’s recent “headscarf” decision (EEOC v. Abercrombie & Fitch, 2015 WL 2464053, 575 U.S. __ (June 1, 2015)) has received extensive attention in the media and across the Internet. The basic holding of the case is now well known and is fairly easily stated: employers are liable under Title VII for failing to provide job applicants or employees with a religious accommodation, even if the need for such accommodation is not made clear, so long as the employer acts with the motive of avoiding religious accommodation, whether said motive is substantiated or not.2015 WL 2464053, at *5.

But this case leaves some key unanswered questions for employers seeking to navigate compliance with Title VII. For example, what happens when an employer does not know that a particular practice is religious?  The Court did not resolve this question. Instead, Justice Scalia, writing for the 8-1 majority, recognized it would be “arguable” that the motive requirement would not be met unless the employer “knows” or “at least suspects that the practice in question is a religious practice,” but declined to resolve the “unargued point by way of dictum” because the retailer in question “knew – or at least suspected – that the scarf was worn for religious reasons.”  Id. at *6 n.3.

This open question was laid bare in Justice Alito’s concurring opinion, where he argued for a more clear standard: “an employer [should not] be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.”  Id. at *3 (Alito, J., concurring) (emphasis added). Otherwise, as Justice Alito observed, an employer could be held liable even if it has no reason to know or suspect that the particular practice is religious. According to Justice Alito, “[t]hat would be very strange[:]”

In this case, the…employee who interviewed [the applicant] had seen [the applicant] wearing scarves on other occasions, and for reasons that the record does not make clear, came to the (correct) conclusion that she is a Muslim. But suppose that the interviewer in this case had never seen [the applicant before]. Suppose that the interviewer thought [the applicant] was wearing the scarf for a secular reason. Suppose that nothing else about [the applicant] made the interviewer even suspect that she was a Muslim or that she was wearing the scarf for a religious reason. If “[Title VII] does not impose a knowledge requirement,” [the retailer] would still be liable. The EEOC, which sued on [the applicant’s] behalf, does not adopt that interpretation (citation), and it is surely wrong.” Id.

The Court’s new Title VII standard will create confusion in the lower courts. Take, for example, the case of Xodus v. Wackenhut Corp., 619 F.3d 683 (7th Cir. 2010), where an applicant for employment was told his dreadlocks violated the company dress code, even though he advised the interviewer that cutting his hair would be “against his beliefs.” When not hired, he sued for religious discrimination under Title VII. The case was dismissed because the applicant never mentioned the word "religion" and the interviewer was not familiar with the Rastafarian religion or its beliefs. Id. at 686-87. The Supreme Court’s recent decision calls the Xodus outcome into question: (1) the dismissal would not have been proper based solely on the applicant’s failure to specify his religious beliefs; but (2) the employer had no knowledge, suspicion or otherwise, that the particular practice of wearing dreadlocks was religious in nature. What result?

Notwithstanding these difficult legal questions, employers should consider some important takeaways:

  • Communication is key. Although employers should be wary of the temptation to explicitly ask job applicants whether some requested accommodation (such as weekend scheduling) is based on a religious belief or practice, employers should make company policies and essential job requirements clear when they suspect a conflict may come into play. Alerting the employee about those policies and asking them if they can work within those confines gives the employee the opportunity to bring up the issue without a direct inquiry.
  • Employers cannot ignore or make adverse employment decisions based on either express accommodation requests or assumptions about unexpressed religious practices. For example, refusing to hire an employee who appears to be Muslim so as to avoid providing scheduling accommodations would violate Title VII.
  • Not every accommodation an employee may want must be provided. An employee’s personal preferences are not protected, and cultural or political beliefs are not “religious beliefs” under Title VII. That said, the word “religion” has been defined broadly by the EEOC to include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Employers should tread carefully and avoid making assumptions.

Jim McNeill, Lino Lipinsky, Dan Beale, Tami Penner and Peter Stockburger of McKenna Long & Aldridge LLP