Monday, in EEOC v. Abercrombie & Fitch Stores, Inc. the Supreme Court held that making employment decisions based on assumptions related to religion (or any other protected class for that matter) can trigger liability under Title VII.

In an 8-1 opinion, the Supreme Court ruled in favor of the EEOC and held that actual notice to the employer is not required to trigger a religious accommodation obligation under Title VII. Rather, the plaintiff need only show that his or her need for an accommodation (even if the employer "has no more than an unsubstantiated suspicion that accommodation would be needed) was a motivating factor in the employer's decision not to hire. The Court's opinion makes clear that Title VII does not impose a knowledge requirement, and that "motive and knowledge are separate concepts." The Court also drew a distinction between the language of Title VII and that of Americans with Disabilities Act ("ADA"). The ADA defines discrimination as an employer's failure to make "reasonable accommodations to the known physical or mental limitations" of a potential employee. The Court found the lack of any similar knowledge requirement in Title VII to be significant, and refused to "add words to the law to produce what is thought to be a desirable result."

In relation to disparate-treatment claims based on a failure to accommodate a religious practice, the Court made clear that "an employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decision." Even though Abercrombie's policy on employee attire is a neutral policy, "Title VII requires otherwise-neutral policies to give way to the need for an accommodation", thereby giving religious practices "favored treatment."

Background on the Case

Seventeen-year-old Samantha Elauf was a frequent patron of an Abercrombie store in Tulsa, Oklahoma, and ultimately applied for a position at the store. Ms. Elauf was also Muslim and, as part of her faith, always wore a hijab (headscarf). This fact collided with Abercrombie's "Look Policy", which requires employees to dress in clothing that is consistent with the clothing it sells. Amongst other things, the Look Policy prohibits employees from wearing "caps," a term the Policy does not define. Caps and headscarves are not sold by Abercrombie.

Candidates for positions with Abercrombie are scored on a points system, and those receiving a score of five or less overall, or less than 2 in the "appearance & sense of style" category, are not recommended for hire. Ms. Elauf initially received a score of 2 in the "appearance" category, and 6 overall, thereby qualifying her for hire.

Unsure of whether the Look Policy applied to applicants and whether Ms. Elauf's headscarf would be acceptable, the hiring manager discussed the issue with her district manager. The hiring manager stated that she assumed the headscarf was for religious purposes because she had previously seen Ms. Elauf wearing it in the store. The district manager determined that the headscarf would violate the Look Policy, as with any type of headwear, and that Ms. Elauf should not be hired. A new score sheet was subsequently created for Ms. Elauf, and this time she received a 1 instead of 2 in the "appearance" category. She was not hired.

Trial Court Rulings

At trial, the district court determined that, even though Ms. Elauf did not explicitly inform Abercrombie that she wore the headscarf for religious reasons and that she must wear it in contravention of the Look Policy, Abercrombie was sufficiently on notice of the conflict because the hiring manager believed or assumed that the headscarf was worn for religious purposes, and that Ms. Elauf would most probably want to wear it while working. The Tenth Circuit reversed, holding that an applicant must inform the employer that he or she engages in a conflicting practice for religious reasons and needs an accommodation. The Tenth Circuit went one step further and held that, even if the employee was not required to provide the notice, the employer must have "particularized, actual knowledge" of a conflict, and assumptions about the religious nature of a practice or its flexibility are not sufficient to trigger an employer's obligation to engage in the interactive process for accommodations.

Takeaways for Employers

Ultimately, the Court's holding is not a surprise. Since its 1989 holding in Price Waterhouse v. Hopkins, the Court has made clear that decisions based on stereotypes and assumptions can get employers into trouble. In light of the Abercrombie holding, employers should ensure that its hiring managers understand not only religious discrimination is prohibited, but also that there may be an affirmative duty to adjust a facially neutral policy as an accommodation to the religious beliefs of an applicant or employee.