SimplyHR | Employment & Labor Blog 

The case, EEOC v. Abercrombie & Fitch Stores, Inc., involved mostly undisputed facts. Ms. Elauf, a devout Muslim, applied to work as a salesperson at an Abercrombie Kids store. During her interview, Elauf wore a headscarf based on her understanding of her religion’s requirements. Elauf’s interview went well, and she received a rating that qualified her to be hired. The assistant manager who interviewed Elauf was concerned, however, that Elauf’s headscarf violated Abercrombie’s “Look Policy,” which prohibited employees from wearing “caps” (a term not defined in Abercrombie’s policy). Unsure whether to hire Elauf, the assistant manager contacted a district manager. When asked, the assistant manager stated she believed Elauf wore the headscarf because of her faith. The district manager concluded that wearing the headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and told the assistant manager not to hire Elauf.

The EEOC brought a religious discrimination claim under Title VII on Elauf’s behalf and obtained a $20,000 judgment in Elauf’s favor. Abercrombie appealed the decision, and the Tenth Circuit Court of Appeals reversed the trial court’s decision. The Tenth Circuit based its reversal on the fact that Elauf never advised Abercrombie that she needed a religious accommodation, concluding that absent a showing of “actual knowledge” of the need for an accommodation, an employer cannot be held liable.

The Supreme Court summarily dismissed the “actual knowledge” requirement imposed by the Tenth Circuit, explaining that unlike other antidiscrimination statutes, Title VII does not impose a knowledge requirement. Rather, to prevail in a disparate-treatment claim, an applicant need only show that her need for an accommodation was a motivating factor in the employer’s decision, not that the employer had actual knowledge of her need. Thus, “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 an accommodation would be needed.” (The Supreme Court also noted however, “[I]t is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice... That issue is not presented in this case, since Abercrombie knew – or at least suspected – that the scarf was worn for religious reasons...”)

In light of this decision, employers should review any employment policies, such as dress codes or grooming policies that may impact various religious practices and understand their obligation to accommodation modifications to such policies absent undue hardship, which can be difficult to prove. In addition, managers, hiring personnel, and human resources representatives should be trained regarding Title VII’s requirements and cautioned to avoid allowing a suspected need for an accommodation to factor into their hiring decisions.

If you have questions about the Supreme Court’s decision or your existing policies, please contact the our Employment & Labor Group.