On June 1, 2015, the U.S. Supreme Court ruled that an applicant rejected for a retail store position by Abercrombie & Fitch because she wore a headscarf could maintain a Title VII claim against the retailer, even though she never specifically asked to be allowed to wear her headscarf as a religious accommodation. Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. (June 1, 2015)
Abercrombie & Fitch Stores, Inc. requires store employees to comply with a “Look Policy” designed to promote and showcase the company’s brand, described as a “classic East Coast collegiate style of clothing.” Sales-floor employees, to whom Abercrombie refers as “Models,” are required to dress in clothing consistent with the clothes being sold in the company’s stores. The policy prohibits certain kinds of clothing, including “caps.”
In mid-2008, Samantha Elauf, then 17 years old, applied for a position in an Abercrombie store. Elauf had worn a hijab, the veil or head covering worn by Muslim women in public, since she was 13 years old. Although the EEOC’s expert testified that some Muslim women wear a hijab for cultural reasons or to demonstrate a personal rejection of certain Western-style dress, Elauf maintained that she wore the headscarf for religious reasons.
Elauf was interviewed for the position by the store’s assistant manager, Heather Cooke. During the interview, Cooke described the Look Policy, but did not mention Elauf’s hijab or tell Elauf that she would not be able to wear a hijab at work. Using Abercrombie’s standard system for rating applicants, Cooke gave Elauf a rating that qualified her to be hired.
However, after the interview, Cooke sought guidance from her store manager and ultimately from the district manager, Randall Johnson, regarding whether it would be a problem for Elauf to wear a headscarf. Cooke testified that she told Johnson that she believed Elauf wore her headscarf because of her religion. (Johnson denied being told that Elauf was a Muslim or that she wore her headscarf for religious reasons.) According to Cooke, Johnson directed her to change Elauf’s “appearance” score from a two to a one, reducing her overall score to a five, below the threshold to be recommended for hire. Based on that direction, Cooke did not extend Elauf a job offer. Elauf was later told by a friend who worked at the store that she was not hired because of her headscarf.
Elauf’s Lawsuit and Lower Court Rulings
The EEOC sued Abercrombie on Elauf’s behalf, alleging that the company violated Title VII by failing to hire Elauf based upon her practice of wearing a headscarf. The EEOC won in the district court, granting summary judgment in favor of the EEOC and awarding Elauf $20,000. Abercrombie then appealed to the Tenth Circuit Court of Appeals. The Court of Appeals reversed the district court’s ruling, holding that an employer cannot ordinarily be held liable under Title VII for failing to accommodate a religious practice unless the plaintiff provides the employer with actual notice of the need for a religious accommodation.
Supreme Court: No “Actual Notice” Requirement
In an opinion joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan, Justice Scalia rejected the “actual notice” standard adopted by the Court of Appeals. Title VII, the majority held, provides two, and only two, causes of action. First, it prohibits “disparate treatment” based upon religion. Second, it prohibits policies that, while facially neutral, have a “disparate impact” upon individuals because of their religion. Contrary to the framework often articulated by practitioners and lower courts, there is no separate cause of action for “failure to accommodate” a religious practice.
Employers are, however, still obligated to accommodate religious practices. That is because Title VII defines “religion” as including “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” Therefore, an applicant can establish a disparate treatment claim based upon religion if she can show that an employer failed to hire her because of her religious practice. Under Title VII, this burden is met if the evidence establishes that the religious practice was a “motivating factor” in the employment decision.
What Title VII does not require, according to the majority, is that the employer have actual knowledge of the employee’s need for an accommodation. Rather, a plaintiff need only demonstrate that the employer’s action was motivated, in whole or in part, by a desire to avoid having to accommodate the employee’s religious practice:
Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.
There are several questions left unanswered by the Court’s decision. First, the majority opinion starts with the assumption that Abercrombie management in fact believed, or at least suspected, that Elauf wore a headscarf for religious reasons. However, what would have happened if Cooke, the assistant manager, had made no reference to her belief regarding Elauf’s religion when she contacted her district manager for advice on how to apply the company’s Look Policy? In his concurring opinion, Justice Alito addressed this issue directly, writing that he did not believe Abercrombie would have been liable in the absence of evidence that Abercrombie was aware of Elauf’s religion. The majority, however, concluded that because the issue was not presented by either side, it “seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do.”
In the case of a garment closely associated with religion, such as a hijab or yarmulke, it may be difficult for an employer to plausibly argue that it had no idea that an employee’s dress might constitute a religious practice that the employer would be required to accommodate under Title VII. However, even in Elauf’s cause, the EEOC’s own expert noted that many women wear a hijab for cultural or social reasons rather than out of religious conviction. Could Abercrombie have avoided liability if Cooke had testified that she did not draw any particular conclusions about Elauf’s religion from her dress? The answer is far from clear.
The Court also did not address whether or in what circumstances granting an exception to an employer’s appearance policy may constitute an “undue hardship” that would excuse the employer from accommodating the employee’s religious practice. That issue also was not addressed by the Court of Appeals. The district court, however, rejected Abercrombie’s undue hardship argument, observing that the company provided no “studies or … specific examples” to demonstrate that granting Elauf an exception “would negatively impact the brand, sales[,] and compliance” with the Look Policy. To the contrary, the district court observed that Abercrombie had made numerous exceptions to the Look Policy, including “eight or nine head scarf exceptions.”
Dissent from Justice Thomas
The sole dissenter, Justice Thomas, took issue with the majority’s conclusion that Title VII creates a cause of action for intentional discrimination when an employer takes action based upon application of a facially neutral employment policy. According to Justice Thomas, an employer that uniformly applies a neutral policy, such as one restricting head coverings at work, does not engage in intentional discrimination when they apply that policy to an employee or applicant whose religious beliefs conflict with the policy. Justice Thomas writes that he would limit intentional discrimination claims for refusal to provide religious accommodations to situations where an employer provides similar accommodations for secular or nondenominational reasons.
Lessons For Employers
The obvious lesson here for employers is that they cannot assume that they have no obligation to provide religious accommodations just because an employee or applicant has not specifically raised the issue. Likewise, employers cannot refuse to hire an applicant just because they think the applicant’s beliefs might conflict with a company policy.
But there is also a more nuanced lesson here, one that has less to do with the Court’s specific holding and much more to do with the story underlying this case. According to the Court of Appeals’ opinion, Abercrombie had made exceptions to its Look Policy for hijab-wearing employees in the past. That begs the question: why did it not do the same for Elauf?
While the court opinions reveal only a partial story, one cannot help but wonder if the result might have been different if Abercrombie had a more clearly defined procedure for dealing with religious accommodation requests. Suppose, instead of simply turning down Elauf, Abercrombie had clearly informed her that her hijab did not comply with the Look Policy, and also advised her of the process for submitting a request for a religious accommodation. If Elauf accepted the job without requesting any accommodation and was later disciplined for violating the Look Policy, Abercrombie might have been able to argue that any suspicions its managers had about Elauf’s religious practices were negated by her own failure to ask for a religious exception to the policy. Conversely, if Elauf did request a religious accommodation, a centralized process for evaluating such requests might have flagged the “eight or nine” exceptions previously granted for headscarf-wearing employees and resulted in the same exception being granted to Elauf. Or, if granting such an exception really would have caused Abercrombie undue hardship that decision might have been made at a corporate level and perhaps backed up with marketing data, expert analysis, or other evidence that would have been more persuasive to the trial court.
Employers who wish to use the announcement of this decision as an opportunity to tighten up their practices and procedures relating to employee religious accommodations should consider the following steps:
- Ensure that accommodation decisions are being made or at least reviewed by people who understand the law, the needs of the organization, the reasons for existing policies, and the circumstances under which prior exceptions to those policies have been made.
- Make sure that front-line managers and supervisors are trained on your organization’s non-discrimination and accommodation policies, and know where to go for guidance on religious accommodation issues.
- Talk to employees and applicants before making decisions based upon assumptions about their religious or cultural beliefs. An applicant who wears a headscarf is not necessarily Muslim, is not necessarily doing so out of religious conviction, and is not necessarily unwilling to modify or make exceptions to their practice to conform to a workplace policy. Accommodation cases often turn on whether the employer engaged with the employee and made a good faith effort to resolve potential conflicts between the needs of the employee and employer. Employers who skip that process do so at their peril.
- Before refusing a religious accommodation based upon the “undue hardship” exception, ensure that the organization can articulate clear and concrete problems that are likely to result from the requested accommodation. If feasible, offer alternative accommodations to minimize or eliminate any conflict with the employee’s religion.
- Train personnel responsible for hiring on how to identify and deal with religious accommodation issues that are likely to occur in your organization and applicant pool. For example, employers with strict dress code requirements should anticipate that some applicants may ask for exceptions for religious or other reasons. Hiring managers should know what questions they should and should not ask, and should be prepared to refer applicants to the appropriate place in the organization to make any formal accommodation requests.