Supreme Court Rules Against Abercrombie & Fitch in religious Bias Case with Hijab Wearing Job Applicant

In EEOC v. Abercrombie & Fitch, No. 14-86, (June 1, 2015), the U.S. Supreme Court ruled in favor of a Muslim woman in a religious discrimination lawsuit under Title VII of the Civil Rights Act, allowing her lawsuit to proceed.  This case could have a significant impact on employers and their decision-making during the employment application process.

The plaintiff, Samantha Elauf, had applied to work at an Abercrombie & Fitch store.  She was not hired because the headscarf she wore during her interview would violate its employee dress code. supremecourtWhile Elauf did not tell Abercrombie the headscarf was worn for religious reasons, the employee who conducted the interview with Elauf inferred as much.  Abercrombie’s position was that it had not discriminated against Elauf, because she had not made a specific request for her headscarf to be accommodated and the company did not know for certain that her headscarf was being worn for religious purposes.

Reversing a ruling by the 10th Circuit Court of Appeals, the Court, in a decision written by Justice Antonin Scalia, held 8-1 that an applicant only has to show that his or her need for an accommodation was a motivating factor in a potential employer’s decision to deny employment.  The Court ruled that the plaintiff could pursue the religious discrimination lawsuit under Title VII of the Civil Rights Act, regardless of whether she explicitly requested accommodation and regardless of whether Abercrombie knew for certain that the religious accommodations were needed.

In reaching this decision, the Court concluded that Title VII focuses on motives, not knowledge.  As the Court implied, , it will be difficult for a plaintiff to show that a particular discriminatory factor motivated an employer, unless the employer has knowledge (or at least a suspicion) that the factor exists.  Nevertheless, as a result of this decision, lower trial courts may be more willing to infer a discriminatory motive if the circumstances demonstrate the employer somehow should have known or had constructive knowledge of the applicant’s need for an accommodation.

This decision may result in some employers taking a harder look at their appearance policies, especially when those policies impact an applicant or employee who wears certain items of clothing or dress in a certain way because of his or her religion.  The decision could also complicate the interview process.  Most employers know they cannot discriminate during the interview process, but in the future, employers may be tempted to inquire about religious beliefs or make assumptions about an applicant that are perceived as discriminatory.  One way for employers to handle these matters is to treat religious accommodation issues during the interview process similar to disability issues.  For example, some employers may want to ask whether an applicant can comply with the dress code policy either with or without an accommodation.

For further information and analysis about the impact of this decision and to identify best practices to adopt in the interview process, please contact Matt Stokely at Pickrel, Schaeffer & Ebeling


AUTHOR: Matt Stokely

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