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Supreme Court to Employers: Ignorance of Religious Practice Is No Excuse

Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employment discrimination based on religion, and imposes on employers a proactive duty to accommodate religious practice that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer.

However, should an employer be liable under Title VII if they do not have actual knowledge of the need to accommodate a religious practice? Under a heightened standard imposed on employers by the United States Supreme Court in EEOC v. Abercrombie & Fitch Stores, Inc., the answer is "yes". While the ruling should not cause most companies any employment problems of "biblical proportions", it does serve as a warning to employers to pay attention for potential religious accommodation issues, be mindful of recent guidelines of the Equal Employment Opportunity Commission ("EEOC"), and to evaluate their current interview, hiring and employment policies.

The Abercrombie "Look"

Abercrombie & Fitch ("Abercrombie") was founded in 1892 as a high-end outfitter for hunting and fishing, but the once elite company went bankrupt in 1976. A couple of years later the defunct company's name was purchased and the new company shifted its focus to selling pricey "neo-preppy" clothing aimed at teenagers and young adults. Abercrombie pushed a very sexualized branding in its advertising and marketing in television commercials and in its stores. The company also openly promoted an elitist and exclusionary branding to its products. When asked once why he refused to make clothes in larger sizes for women, Abercrombie CEO Michael Jeffries stated the following:

"In every school there are the cool and popular kids and the not-so-cool kids. We go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends. A lot of people don't belong in our clothes, and they can't belong. Are we exclusionary? Absolutely."

In the same interview, Jeffries noted that the company only hired good-looking people to sell their products because they attracted other good-looking people. To that end, Abercrombie imposed what it called its "Look Policy" on its young sales staff. Instead of being called sales people, they were given the title of "models". The Look Policy set very strict standards and guidelines, including detailed charts as to what hairstyles both female and male employees were allowed to have, and what clothes they were supposed to wear to fit into Abercrombie's image. The look policy was strictly enforced. One particular part of the Look Policy, which would play a key role in the Supreme Court case, read as follows:

"For example, head coverings, including baseball caps, are not permitted. For certain purposes, such as religion or disability, however, associates may be permitted to wear approved head coverings."

Samantha Elauf Applies to Work at Abercrombie

In 2008, Samantha Elauf, a practicing Muslim, applied for a position at a Tulsa, Oklahoma Abercrombie store. Heather Cooke, the store's assistant manager, subsequently interviewed the 17-year-old girl. As part of her religious practice, Elauf wears a headscarf (or hijab), and she did so in her interview. During the interview, Elauf and Cooke made no mention of the headscarf, nor did Elauf indicate that she would need any religious accommodation.

Cooke gave Elauf a favorable rating on her interview, which qualified Elauf to be hired. However, Abercrombie's Look Policy, prohibited head coverings and caps, and Cooke was concerned that Elauf's headscarf would conflict with this policy. When Cooke contacted the district manager, Randall Johnson, to determine whether the headscarf constituted a "cap" within the meaning of the Look Policy, Johnson indicated that the headscarf would violate the policy. Although Cooke informed Johnson that she believed Elauf wore the headscarf because of her faith, Johnson directed Cooke to lower Elauf's rating on the appearance portion of the evaluation, which caused Elauf's overall score to fall below the threshold necessary to be hired. Accordingly, Abercrombie did not hire Elauf. It is noteworthy that Abercrombie's written policy did provide for making an accommodation for religious practices.

Elauf's Religious Discrimination Lawsuit in the Lower Courts

The EEOC sued Abercrombie on behalf of Elauf, alleging that Abercrombie violated Title VII by refusing to hire Elauf because of her headscarf. In response, Abercrombie argued that Elauf had a duty to inform the company that she required an accommodation from the Look Policy, and in essence, stated that Title VII did not impose a duty to "guess" whether someone needed a religious accommodation. The federal trial court granted summary judgment in favor of the EEOC on the ground that Abercrombie had actual notice of Elauf's religious practice of wearing a headscarf because of Cooke's assumptions about Elauf's religion and reason for wearing the headscarf.

In reversing the trial court's decision and granting summary judgment in favor of Abercrombie, the United States Court of Appeals for the Tenth Circuit concluded that ordinarily an applicant (or employee) must establish that she informed the employer that she needed an accommodation for a particular religious practice due to a conflict between the practice and the employer's work rules.

The Supreme Court Sets a Heightened Standard for Employers

The U.S. Supreme Court reversed the ruling of the Tenth Circuit in an 8 to 1 decision. In doing so, the Supreme Court held that, to prevail in a disparate-treatment claim, "an applicant need only show that his need for an accommodation was a motivating factor in the employer's decision," not that the employer had knowledge of his need. According to the Court, while some anti-discrimination statutes, such as the Americans with Disabilities Act of 1990, impose a knowledge requirement, Title VII does not. Instead, Title VII prohibits certain motives. As such, "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." (emphasis added). In other words, "[a]n employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions." (emphasis added). Despite the Court's ruling in this regard, the Court recognized that the applicant (or employee) must actually require an accommodation for the employer to violate Title VII.

In essence, the Supreme Court held that actual knowledge is not required to trigger an employer's duty to accommodate a religious practice, and that suspicion alone could be enough to impose liability. In this case, it was undisputed that the Abercrombie Assistant Manager at least suspected the headscarf was worn for religious reasons, and that suspicion resulted in Elauf not being hired.

The Court did note in its decision that the motive requirement may not be met if the employer does not suspect that the practice in question is a religious practice. Although the Court declined to specifically address this issue, the Court indicated that an employer might avoid liability if the evidence shows that the employer neither suspected nor had knowledge that a practice is a religious practice.

Where does this leave employers?

As a general practice, it is a wise idea for employers to avoid asking applicants about their religious practices, or making unsupported assumptions based on ethnic or religious stereotyping. But in light of the Supreme Court's decision, and employer who has any reason to believe or even suspect an accommodation may be needed should consider opening up a dialogue with the applicant to begin the interactive process. This could involve:

  • Explaining the relevant work rule
  • Asking if the applicant could comply with the workplace requirement or would an accommodation be required
  • Analysis of whether required/requested accommodation is reasonable or would impose an undue hardship
  • If unclear, seek advice from legal counsel
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About Mark Fijman

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Mark Fijman specializes in labor and employment issues relating to the restaurant and hospitality industry, including Fair Labor Standards Act ("FLSA") compliance. He is an attorney in the Labor and Employment Section of law firm Phelps Dunbar, LLP’s Jackson, Mississippi office. He can be contacted at (601) 360-9716 or FijmanM@Phelps.com.

Fijman represents and advises employers regarding federal and state employment laws dealing with race, age, disability, gender, national origin and religious discrimination and in administrative proceedings before the Equal Employment Opportunity Commission. His practice includes representing employers seeking to enforce non-competition/non-solicitation agreements and pursuing injunctive relief for improper use of proprietary information.He routinely counsels on issues ranging from overtime questions to discipline and termination decisions. Direct phone: (601) 360-9716.  Phelps Dunbar, LLP has offices in New Orleans, LA, Baton Rouge, LA, Houston, TX, Tampa, FL, Mobile, AL, Raleigh, NC, Jackson, MS, Gulfport, MS, Tupelo, MS and London, England.

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