Abercrombie Decision Raises the Bar for Accommodating Employees of Faith

The EEOC sued on Elauf's behalf, prevailed at the district court, but lost on appeal. The appellate court reasoned that Abercrombie had no actual knowledge of the religious reasons that Elauf wore a headscarf because she never revealed them to the interviewer. The Supreme Court reversed and remanded in a 7-2 decision, authored by Justice Scalia with separate partial concurrences and partial dissents by Justices Alito and Thomas.

The Court's Ruling

The Court explained that under Title VII, “[a]n employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions.” Therefore, the Court held that, to prevail on a claim of religious discrimination, an applicant need only show that his need for an accommodation was a motivating factor in the employer's decision. In effect, the Court ruled that failing to accommodate a religious practice constitutes discrimination based on religion unless the accommodation imposes an undue hardship on the employer.

The Court rejected outright Abercrombie's argument that an employer must have actual knowledge of an applicant's religious beliefs. The Court recognized, however, that an employer's knowledge could be relevant to determining whether an applicant's religion was actually a motivating factor in the employer's decision. In a footnote that is sure to be the epicenter of religious discrimination litigation for the near future, the Court stated that “it 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 ' i.e., that he cannot discriminate 'because of' a 'religious practice' unless he knows or suspects it to be a religious practice.”

Of course, future courts will have to decide what level of knowledge or assumptions on the part of a manager will establish that the employer “at least suspects that” a particular practice is motivated by an applicant's or employee's religious beliefs. In the meantime, employers should consider adopting the following practices to create a more welcoming environment for applicants and employees of faith and to avoid religious discrimination claims while avoiding unmanageable disruptions to the business.

Notices Regarding Religious Accommodations

Consider including notices about the availability of religious accommodations on application materials and in employee handbooks. These will educate applicants and employees about the process for seeking religious accommodations. They will also be useful in demonstrating that the employer is committed to providing accommodations should litigation arise.

Seeking to Understand

Do not ask applicants or employees if they need religious accommodations based on stereotypes, but do not ignore an apparent conflict between a work requirement and an individual's religious practice. Rather, when the individual is not complying with a work requirement, explain the requirement and ask the individual whether he or she can comply. This approach avoids the inclination to resort to stereotypes, but offers an opening for an individual to request an accommodation if needed.

Engaging in an Interactive Conversation

Have an interactive conversation and assessment of hardship as you would with applicants or employees with disabilities under the Americans with Disabilities Act (ADA). Focus on understanding the conflict between the individual's religious beliefs and work requirements, determining the flexibility of the applicant's or employee's beliefs, and the potential hardship posed by modifying the work requirement or rule. Employers need not accommodate an employee if doing so would pose more than a de minimis hardship to the company, but should make a good-faith attempt to accommodate if possible.

Veena A. Iyer is a shareholder in the Labor & Employment Group at Nilan Johnson Lewis PA in Minneapolis. She can be reached at [email protected] or 612-305-7695.

In early June, the Supreme Court issued its decision in EEOC v. Abercrombie, a landmark case interpreting Title VII's prohibition on religious discrimination and the mandate for religious accommodations. The case raised the question of whether an employer must have actual knowledge of the religious nature of an employee's practice to be found liable for discrimination under Title VII for denying employment based on that practice. The short answer is no.

The Case

In an article published here in May 2015, I summarized the facts of the case in detail, so I offer only a truncated version here. The plaintiff, Samantha Elauf, wore a headscarf to an interview at Abercrombie Kids. She wore the headscarf for religious purposes but did not say so during the interview. The interviewer gave the plaintiff a score that would have ordinarily led to hire, but was unsure whether the headscarf conflicted with Abercrombie's dress code, known as the “Look Policy.” At her deposition, the interviewer stated that she spoke to a district manager and explained that she believed the plaintiff wore the headscarf because of her religious beliefs. The district manager stated that the headscarf, like all head coverings, would violate the Look Policy, and directed the interviewer not to hire Elauf.

The EEOC sued on Elauf's behalf, prevailed at the district court, but lost on appeal. The appellate court reasoned that Abercrombie had no actual knowledge of the religious reasons that Elauf wore a headscarf because she never revealed them to the interviewer. The Supreme Court reversed and remanded in a 7-2 decision, authored by Justice Scalia with separate partial concurrences and partial dissents by Justices Alito and Thomas.

The Court's Ruling

The Court explained that under Title VII, “[a]n employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions.” Therefore, the Court held that, to prevail on a claim of religious discrimination, an applicant need only show that his need for an accommodation was a motivating factor in the employer's decision. In effect, the Court ruled that failing to accommodate a religious practice constitutes discrimination based on religion unless the accommodation imposes an undue hardship on the employer.

The Court rejected outright Abercrombie's argument that an employer must have actual knowledge of an applicant's religious beliefs. The Court recognized, however, that an employer's knowledge could be relevant to determining whether an applicant's religion was actually a motivating factor in the employer's decision. In a footnote that is sure to be the epicenter of religious discrimination litigation for the near future, the Court stated that “it 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 ' i.e., that he cannot discriminate 'because of' a 'religious practice' unless he knows or suspects it to be a religious practice.”

Of course, future courts will have to decide what level of knowledge or assumptions on the part of a manager will establish that the employer “at least suspects that” a particular practice is motivated by an applicant's or employee's religious beliefs. In the meantime, employers should consider adopting the following practices to create a more welcoming environment for applicants and employees of faith and to avoid religious discrimination claims while avoiding unmanageable disruptions to the business.

Notices Regarding Religious Accommodations

Consider including notices about the availability of religious accommodations on application materials and in employee handbooks. These will educate applicants and employees about the process for seeking religious accommodations. They will also be useful in demonstrating that the employer is committed to providing accommodations should litigation arise.

Seeking to Understand

Do not ask applicants or employees if they need religious accommodations based on stereotypes, but do not ignore an apparent conflict between a work requirement and an individual's religious practice. Rather, when the individual is not complying with a work requirement, explain the requirement and ask the individual whether he or she can comply. This approach avoids the inclination to resort to stereotypes, but offers an opening for an individual to request an accommodation if needed.

Engaging in an Interactive Conversation

Have an interactive conversation and assessment of hardship as you would with applicants or employees with disabilities under the Americans with Disabilities Act (ADA). Focus on understanding the conflict between the individual's religious beliefs and work requirements, determining the flexibility of the applicant's or employee's beliefs, and the potential hardship posed by modifying the work requirement or rule. Employers need not accommodate an employee if doing so would pose more than a de minimis hardship to the company, but should make a good-faith attempt to accommodate if possible.

Veena A. Iyer is a shareholder in the Labor & Employment Group at Nilan Johnson Lewis PA in Minneapolis. She can be reached at [email protected] or 612-305-7695.