AVOIDING RELIGIOUS DISCRIMINATION LIABILITY IN THE WAKE OF EEOC v. ABERCROMBIE & FITCH

In a case with broad-reaching implications regarding religious discrimination and accommodation claims, the Supreme Court recently overturned the Tenth Circuit Court of Appeals’ decision in favor of Abercrombie and against the EEOC.  The EEOC alleged in the lawsuit that Abercrombie violated Title VII when it refused to hire a Muslim teenager after she appeared for a job interview wearing a head scarf, which conflicted with Abercrombie’s dress code.  The EEOC had prevailed at the District Court, but the Tenth Circuit reversed and granted Abercrombie’s motion for summary judgment, holding that failure-to-accommodate liability attached only when the applicant provided the employer with actual knowledge of the need for an accommodation.  The Supreme Court held otherwise.  As Justice Scalia noted, “Title VII forbids adverse employment decisions made with a forbidden motive.”

Abercrombie argued that it did not know the applicant wore the headscarf for religious reasons; and that therefore, it could not have been motivated by her religious practice. Abercrombie pointed out that the applicant never requested an accommodation based on her religious practice and argued that applicants should not be allowed “to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.”  The Equal Employment Opportunity Commission, who brought the suit on behalf of the applicant, argued that the Court only needed to determine whether an adverse employment decision occurred that was because of the applicant’s religion – if so, both Abercrombie’s actual knowledge of the religious practice and any alleged religiously neutral reasons supporting the decision were irrelevant.

Justice Scalia announced the decision against Abercrombie, saying “This is really easy.” The Supreme Court agreed with the EEOC, finding that an employer does not have to have actual knowledge of a person’s religious practice to violate Title VII if the employer makes an adverse decision against an applicant or employee with an illegal motive related to religious practice.  Importantly, the Supreme Court added that a job applicant has no affirmative obligation to inform her potential employer that she requires any religious accommodation.  Justice Ginsburg pointed out that, in this case, the applicant did not even know that her headscarf was against Abercrombie’s dress code, and thus could not have known to request accommodation.

Obviously this poses a dilemma for employers – employers may not question an applicant about their religious practices and therefore it is difficult to start the accommodation discussion during the job interview or application process.  Even before Abercrombie, however, Title VII’s religious accommodation requirements did not impose a burden on an applicant to request an accommodation before accepting a job offer.  In addition, Title VII did not allow an employer to make the decision not to hire someone if that decision was based on an illegal motive.  In this case, Abercrombie tried to argue with a straight face that they were not aware of the religious practice despite the existence of the head scarf at the job interview.  The Supreme Court wasn’t necessarily buying this argument, but in the end the employer’s knowledge of the religious practice was not relevant.  The relevant factor for the Court was the existence of a religious practice and an adverse employment decision based on the existence of that practice.

Employers should fully disclose all job requirements to job applicants and ask during the interview whether the person will be able to perform the requirements with or without accommodation.  If the person says yes while wearing a head scarf, and the job requires no head scarf be worn, then the employer should clearly not make the decision not to hire the person based on the assumption that the person will not remove the head scarf for the job.  Rather, if the employee on her first day appeared wearing the head scarf, and conversation could have been had with the employee about the dress code.  At that point, it is likely that the employee would have requested an accommodation based on religious practice, and then Abercrombie would have been required to make the accommodation unless it posed an undue hardship.  Undue hardship in the religious accommodation context is different from that under the Americans With Disabilities Act.  In this context, the key question is whether it poses more than a de minimis cost or burden.

Abercrombie’s problem here was the assumption that she could not perform the essential functions of the position because she was wearing a head scarf.  Employers do not get to make such assumptions under Title VII.  Rather, employers should enter into a dialogue with employees about accommodating religious practices when it becomes necessary to do so.  Instead, Abercrombie circumvented the entire accommodation process when it refused to hire a Muslim teenager wearing the head scarf.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including those relating to Title VII, for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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