By Edith Thomas
On June 1, 2015, the Supreme Court issued a decision in a religious accommodation claim, EEOC v. Abercrombie & Fitch Stores, Inc. The opinion was authored by Scalia and joined by Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, with a concurring opinion by Alito and Thomas filing an opinion concurring in part and dissenting in part.
On June 1, 2015, the Supreme Court issued a decision in a religious accommodation claim, EEOC v. Abercrombie & Fitch Stores, Inc. The opinion was authored by Scalia and joined by Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, with a concurring opinion by Alito and Thomas filing an opinion concurring in part and dissenting in part.
The plaintiff, Samantha Elauf, is a practicing Muslim who wears a headscarf. Abercrombie interviewed Elauf for an in-store position, and she received a rating that qualified her to be hired. Elauf was ultimately not hired because the store’s assistant manager and district manager were concerned that her headscarf would conflict with Abercrombie’s Look Policy, a dress code for employees. This decision not to hire Elauf was made despite the fact that the assistant manager informed the district manager that she believed Elauf wore the headscarf because of her faith. No one from Abercrombie ever spoke to Elauf about the reason she wore a headscarf. The EEOC sued Abercrombie on Elauf’s behalf under Title VII, and the District Court granted the EEOC summary judgment on liability and held a trial on damages. 798 F. Supp. 2d 1272 (2011). On appeal, the Tenth Circuit reversed and awarded Abercrombie summary judgment. 731 F.3d 1106 (2013).
Abercrombie’s main argument was that an applicant cannot show disparate treatment, or intentional discrimination, without first showing that an employer has actual knowledge of the applicant’s need for an accommodation. The Supreme Court disagreed, and held that an applicant only need show that the need for an accommodation was a motivating factor in the employer’s decision. The Supreme Court’s decision turns on the difference between motive and knowledge, and holds that an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Referring back to the text of Title VII itself, the Supreme Court stated:
Abercrombie’s main argument was that an applicant cannot show disparate treatment, or intentional discrimination, without first showing that an employer has actual knowledge of the applicant’s need for an accommodation. The Supreme Court disagreed, and held that an applicant only need show that the need for an accommodation was a motivating factor in the employer’s decision. The Supreme Court’s decision turns on the difference between motive and knowledge, and holds that an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Referring back to the text of Title VII itself, the Supreme Court stated:
Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor's knowledge. 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.
E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 14-86, 2015 WL 2464053, at *3 (June 1, 2015).
In this case, since Abercrombie employees clearly believed that Elauf wore the headscarf for religious reasons, they cannot escape liability just because Elauf did not specifically ask for a religious accommodation or because no one asked Elauf if she did in fact wear the headscarf for religious reasons.
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