The U.S. Supreme Court issued its decision in EEOC v. Abercrombie & Fitch Stores, Inc., on June 1, 2015. The facts of the case were simple: Samantha Elauf interviewed for a retail job at Abercrombie & Fitch, a store which has a “look policy” dictating that employees cannot wear caps at work. “Caps” was not defined in the policy. Heather Cooke, who interviewed Ms. Elauf, observed that she was wearing a headscarf, and presumed that she wore it because of religious beliefs. Ms. Cooke, who decided that Ms. Elauf was qualified for the job, asked her supervisor whether Ms. Elauf’s headscarf would violate the store’s look policy. The supervisor told Cooke that Elauf’s headscarf would violate the look policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.

The court held that Abercrombie & Fitch violated Title VII’s prohibition on disparate treatment on the basis of religion. Although Abercrombie & Fitch argued that it was not required to accommodate Elauf’s religious practice because she did not specifically ask for accommodation, and therefore they had no actual notice of her need for an accommodation, the court rejected that argument. Justice Scalia, writing for the majority, stated the rule simply: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” In other words, 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 an accommodation would be needed.

What does this mean for employers?

The upshot of this case for employers is also simple:  An employment decision simply cannot take into account an employee’s (or job applicant’s) religious belief or practice. If a discriminatory motive exists (even if the employee does not specifically make the employer aware of her religion, or of her need for an accommodation for a religious belief or practice), the employment decision violates Title VII. It is important for employers to keep this in mind at all times when making employment decisions—unless an accommodation would impose anundue hardship on the employer, the employer must make the accommodation even if the employee does not request it.

Title VII refers to that part of the Civil Rights Act of 1964 that prohibits employment discrimination based on race, color, religion, sex and national origin.

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