Supreme Court Rules an Employer’s Failure to Accommodate a Job Applicant’s Religious Practice Violates Title VII Without Proof the Applicant Requested An Accommodation
In its much anticipated decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court has held that a prospective employee who was turned down for a job because she wore a headscarf, which the employer suspected was worn for religious reasons, can proceed with her claim of religious discrimination under Title VII of the Civil Rights Act of 1964, although when she applied for the job the applicant never requested permission to wear the headscarf as an accommodation to her religious practices. Employers should be aware that the Court’s decision (1) imposes on an employer an affirmative obligation to reasonably accommodate the religious practices of its employees and prospective employees and (2) exposes an employer to potential liability for intentional discrimination, and thus for compensatory and punitive damages, for failing to make such accommodations.
Samantha Elauf, a practicing Muslim, was interviewed for a position at an Abercrombie & Fitch store by Heather Cooke, the store’s assistant manager. Cooke was concerned that the headscarf Elauf wore to the interview would conflict with the company’s “Look Policy.” Cooke sought guidance from her district manager, Randall Johnson, advising him that Elauf was qualified for the position but wore a headscarf for what Cooke believed were religious reasons. Johnson directed Cooke not to hire Elauf because the headscarf would violate the Look Policy, as would all other headwear, religious or otherwise.
Subsequently, the Equal Employment Opportunity Commission (EEOC) brought suit on Elauf’s behalf, alleging that Abercrombie had discriminated against her because of her religion in violation of Title VII. The district court agreed with the EEOC and awarded Elauf $20,000 in damages. The Tenth Circuit Court of Appeals, however, reversed that award. The Tenth Circuit concluded that Abercrombie should have been granted summary judgment because, in the court’s view, an employer cannot be liable under Title VII for failing to accommodate an applicant’s (or employee’s) religious practice unless the applicant (or employee) provides the employer with actual knowledge of the need for the accommodation, something Elauf had not done.
The Supreme Court’s Decision
Justice Scalia, writing for a majority of the Court (Justices Alito and Thomas issued a concurring opinion and a dissenting opinion, respectively), focused his analysis on the fact that Title VII prohibits disparate treatment (intentional discrimination) of a job applicant “because of” her religion, which includes religious practices. This “because of” requirement is met when the applicant shows that her religion was a “motivating factor” in the decision not to hire her. Moreover, an employment decision made because of an improper motive is unlawful even if the employer does not have actual knowledge of the applicant’s need for a religious accommodation. In this regard, Justice Scalia distinguished Title VII from the Americans with Disabilities Act, which expressly requires an employer to make reasonable accommodations only for the known physical or mental limitations of the job applicant. The evidence showed that Abercrombie suspected that Elauf required an accommodation for her headscarf, and that evidence was sufficient to support a finding that her religion was a “motivating factor” in the decision to deny her a job. A request for an accommodation, had Elauf made one, would have provided additional evidence on the “motivating factor” issue but was not required evidence. (The Court expressly declined to decide whether the “motivating factor” requirement can be met when the employer does not even suspect that the employee requires a religious accommodation.) The Court recognized that Title VII provides employers with an “undue hardship” defense to a claim of failure to accommodate a religious practice, but Abercrombie did not appear to raise that defense, and the Court did not discuss it further.
Of critical importance was the Court’s rejection of Abercrombie’s contention that it could not be guilty of intentional discrimination because its policy against employees wearing headgear applied to everyone regardless of religion. In the Court’s view, “Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment affirmatively obligating employers not to fail or refuse to hire or discharge any individual” because of the individual’s religion or religious practices. (Emphasis added.) Accordingly, the Court reversed the Tenth Circuit’s award of summary judgment to Abercrombie and remanded the case for further consideration consistent with the principles announced in the opinion.
In light of the Court’s decision, an employer covered by Title VII (employers with at least 15 employees) must tread very carefully when presented with a request for a religious accommodation or even when it suspects that an employee might require one. The Court’s opinion makes clear that an employer’s assertion that its policies or practices are even-handedly applied to people of all religions or no religion is not a defense to a failure to accommodate a reasonable request for a religious accommodation. Moreover, the Court’s characterization of a failure to accommodate as “disparate treatment,” as opposed to “disparate impact,” exposes employers to Title VII’s provision for compensatory and punitive damages as well as back pay. (Back pay would have been the only monetary remedy available had the Court ruled that a failure to accommodate is a form of “disparate impact.”) Serious consideration should be given to these legal implications before turning down a request for a religious accommodation.
For answers to any questions regarding this blog, or with regard to religious accommodation issues generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.