[co-author: Matthew Garber - Summer Associate]

Last week, in EEOC. v. Abercrombie & Fitch Stores, Inc., the Supreme Court addressed religious accommodations under Title VII of the Civil Rights Act of 1964.

The background of the case dates to 2008.  A young woman named Samantha Elauf interviewed for a position with the clothing retailer Abercrombie & Fitch.  Elauf’s interviewer, an assistant store manager named Heather Cooke, gave Elauf good marks on the interview—good enough to be hired.

Despite Elauf’s high marks, Cooke was concerned about the fact that Elauf wore a head scarf—a violation of Abercrombie’s “Look Policy,” which prohibited the wearing of any “caps.” Notably, “caps” are not defined under the Abercrombie policy. Although Cooke did not ask Elauf about the head scarf, she suspected that it was a part of her religious observance.  (Elauf is, in fact, a practicing Muslim.)  After conferring with her district manager, Cooke was directed to not hire Elauf, as any head covering (religious or not) would run afoul of the Look Policy.

The EEOC sued Abercrombie under Title VII of the Civil Rights Act, which forbids employment discrimination against an individual based on the individual’s religious practices or beliefs. Employers are required to reasonably accommodate religious observances or practices unless the employer can demonstrate undue hardship on the conduct of the employer’s business.

At trial, Abercrombie did not focus on demonstrating undue hardship.  Rather, Abercrombie argued that a job applicant cannot prove intentional discrimination if the company did not know of the applicant’s need for an accommodation.  Abercrombie asked the Supreme Court to place the burden of seeking accommodation onto the job applicant.  In Abercrombie’s view, Elauf should have stated her need for an accommodation to the employer before the employer could ever be accused of intentional discrimination.  (Makes sense, right?)

By a decisive 8-1 vote, the Supreme Court rejected Abercrombie’s argument.  Writing for the majority, Justice Antonin Scalia held: “Motive and knowledge are separate concepts.  An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, 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 accommodation would be needed.” Huh??

Essentially, employers are prohibited from making an applicant’s religious practice a factor in an employment decision.  Whether the need for an accommodation is merely suspected or fully confirmed, religious practices are protected under Title VII.

What Does This Mean For Employers and Hiring Managers?

1. Explain the essential requirements of the position—then put the ball in the applicant’s court.  The good news is that interviewers do not need to go “fishing” for potential accommodations.  (The problem with Abercrombie was that it made a suspected need for an accommodation a factor in deciding not to hire Elauf.)  Rather, interviewers can explain their essential job requirements and ask the applicant whether any accommodations would be required.
2. Document hiring decisions.  The Abercrombie decision does not mean that overtly religious applicants are to be given preference.  Rather, a religious practice may not be a motivating factor in an employment decision.  Documentation showing the internal evaluation process of a candidate—all based on legitimate factors unrelated to any protected traits—will go a long way.
3. “Undue hardship” remains intact.  Religious accommodations are not always feasible.  If you believe accommodating a religious practice will create an undue hardship, be prepared to articulate the reasons.  Proactively consult legal counsel so you can be sure you are on solid ground before such a situation arises.