Audit, Compliance and Risk Blog

Federal laws protect individuals against job discrimination based on a variety of “protected classes” of characteristics. Most represent physical characteristics, such as race, sex, and disability. In addition, however, Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship.

On June 1, the U.S. Supreme Court issued a decision interpreting that prohibition, deciding that an employer cannot avoid this prohibition by failing to inquire about situations that raise questions about whether a would-be employee’s religion would conflict with company policies, and thereby failing to notify the applicant that accommodation might be necessary. This decision, in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, reverses a Circuit Court decision placing the sole responsibility for starting a discussion of accommodation on the applicant.

What Does Title VII Say About Religious Discrimination?

Title VII defines religion to include “all aspects of religious observance and practice, as well as belief,” and prohibits an employer from discriminating against any individual because of the individual’s “religion,” unless the employer demonstrates that it cannot reasonably accommodate a religious observance or practice without “undue hardship on the conduct of the employer’s business.”

• Types of Discrimination

Title VII provides two broad theories of discrimination:

• “Disparate treatment” discrimination, in which the employer treats the employee or applicant differently because of that person’s religion.

• “Disparate impact” discrimination, in which the employer provides the same conditions or restrictions to all similar individuals, but the particular individual is more heavily burdened because of that person’s religion.

In most Title VII contexts – cases alleging race or sex discrimination, for example – a plaintiff must show that a disparate treatment was intentional in order to win on such a claim, but need not show that a disparate impact was intentional. Until this month’s decision, courts had generally applied this approach to claims of religious discrimination.

• Requirement For Reasonable Accommodation

Employers must attempt to reasonably accommodate employees whose religion interferes with traditional workplace procedures. Title VII does not expressly describe how accommodations are to be developed and assessed, but EEOC guidelines have considered the following to provide reasonable examples:

• Allowing an employee to wear religious attire.

• Adjusting a uniform to accommodate religious needs.

• Providing days of worship off.

• Scheduling to accommodate religious meetings.

Most practitioners have assumed that the process of accommodation begins with an applicant or employee request (which is what the Americans with Disabilities Act provides, as a way to prevent disability discrimination).

What Does the Abercrombie & Fitch Decision Provide?

This month’s decision addresses a situation where the applicant might not have known that her religion conflicted with employer policy, and where the company rejected her application without raising the issue explicitly.

• What Was the Case?

Samantha Elauf was an Abercrombie & Fitch customer, who had worked retail jobs in the same mall as the store she patronized. She is Muslim, and wears a headscarf (hijab) for religious reasons. She applied for a job at that store; before doing so she asked a friend who worked there whether her hijab would be a problem; the friend told her she thought if would be acceptable if the scarf was not black. For her interview with the store’s assistant manager, Heather Cooke, Elauf wore a black headscarf, as well as “an Abercrombie-like” T-shirt and jeans. Abercrombie places great emphasis on “The Look”, a collegiate preppy style; the company manual describes these style requirements, and forbids “caps.”

Cooke did not mention The Look specifically during the interview, but did describe Abercrombie’s dress and style expectations in general terms. Abercrombie personnel policies instruct interviewers not to ask about religion, and Elauf did not bring it up either. Neither party discussed Elauf’s headscarf and whether it would be permissible.

After the interview, Cooke rated Elauf as qualified for hiring, but spoke to the store’s manager about the permissibility of the headscarf. He was uncertain, and referred her to district manager Randall Johnson. Johnson said the headscarf conflicted with The Look, and directed Cooke to re-rate Elauf as unqualified and then reject her application. Elauf’s friend later told her she had not been hired because of her headscarf.

Elauf complained to EEOC. EEOC sued, claiming that Abercrombie violated title VII when it “refused to hire Ms. Elauf because she wears a hijab” and “failed to accommodate her religious beliefs by making an exception to the Look Policy.” EEOC sought injunctive relief, back pay, and damages. During the lawsuit, Cooke and Johnson disagreed about whether Cooke had told Johnson that Elauf was Muslim and wore the headscarf for religious reasons. Abercrombie argued that Elauf failed to inform it that the Look Policy conflicted with her religious practices. It further argued that EEOC’s proposed accommodation—allowing Elauf to wear her headscarf—would have imposed an undue hardship on the company.

The district court granted summary judgment for EEOC, finding that Elauf had worn her headscarf to the interview, that Cooke knew she was Muslim, that Cooke’s knowledge was attributable to Abercrombie, and that Abercrombie had refused to make a reasonable accommodation (and noting that the company actually has allowed multiple headscarf exceptions to The Look policy).

Abercrombie appealed, and the Tenth Court of Appeals reversed the district court and granted summary judgment for the company. The majority found that since Elauf never actually told Abercrombie about her religion and need for accommodation, the company had no responsibility to provide accommodation. One judge dissented, and would have refused to grant summary judgment to either party and instead have directed the district court to consider whether Abercrombie’s failure to tell Elauf that her headscarf conflicted with The Look was based on religious discrimination; he also note that Elauf’s failure to inform Abercrombie of her need for accommodation might have been based on Abercrombie’s failure to inform her there was a potential conflict.

EEOC appealed, and the Supreme Court reversed the Tenth Circuit’s grant of summary judgment for Abercrombie. In his majority opinion, Justice Scalia focuses Title VII’s prohibition on the employer’s motive rather than just on its knowledge or action: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” The Circuit Court’s sole focus on the company’s [lack of] knowledge of Elauf’s religious beliefs and practices was incorrect.

Self-Assessment Checklist

Does my organization have procedures for notifying applicants of its employment policies, terms and conditions before or during job interviews?

• Do these procedures include direction that an interviewer should ask each applicant if he or she understands the policies, terms and conditions, and is prepared to accept them as presented?

Does the organization have procedures to respond when an applicant has questions, concerns, or expresses a need for accommodation?

Have these procedures been developed with consideration for prohibitions against discrimination based on a variety of protected characteristics, including religion?

Have these procedures been invoked in actual practice?

Where Can I Go For More Information?

• EEOC v. Abercrombie & Fitch decision 

• Tenth Circuit opinion 

• EEOC religious discrimination webpage 

photo credit: Muslima im Kaufrausch via photopin (license)