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Sometimes, It’s Not What You Know (Or Don’t Know):


In June, the United States Supreme Court decided a case other than the landmark decisions that upheld Obamacare and same-sex marriage. Employers that are subject to Title VII of the Civil Rights Act of 1964 should be particularly interested in this other case, which received far less fan fare and which the Court itself described as a "really easy one." In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the Court decided that an employer can violate Title VII by treating a job applicant or employee unfavorably due to a religious factor, even if the employer lacks actual knowledge of the applicant’s or employee’s specific religious beliefs. As a result of Abercrombie, employers should reevaluate their hiring and other practices to avoid unintentionally discriminating against those with needs for religious accommodations.

Brief Legal Background

Title VII of the Civil Rights Act of 1964 prohibits two categories of employment practices. The first category is known as "disparate treatment." Put simply, disparate treatment is discrimination with respect to a hiring or firing decision, or that otherwise relates to the terms and conditions of employment in which the employer treats some people less favorably than others because of their race, color, religion, sex, or national origin. In the religious context, an employer who refuses to accommodate an employee’s sincerely held religious beliefs or practices is guilty of disparate treatment unless the accommodation would impose an undue hardship on the employer (more than a minimal burden on the business’ operation). The second category is known as "disparate impact." It focuses on discriminatory consequences. Disparate impact claims involve employment practices that are or at first appear to be facially neutral in their treatment of different groups, but that in fact fall more harshly on one group than another and cannot be justified by business necessity.

For example, testing a particular skill only of the religious or minority applicants is disparate treatment. Testing all applicants and getting results from that test that eliminates a particular minority or religion disproportionately is disparate impact. Because disparate treatment cases are typically easier for an employee to win than disparate impact cases, employers have an incentive to adopt and apply neutral employment practices whenever possible.

Samantha Elauf’s and the EEOC’s Suit Against Abercrombie

In 2008, teenager Samantha Elauf applied for a job at an Abercrombie & Fitch retail store. Abercrombie has a dress code known as the "look policy" that prohibits its employees from wearing certain items, including "caps." Elauf is a devout Muslim and believes that her religion requires her to wear a headscarf while in public.

The hiring manager at Abercrombie who first interviewed Elauf gave her a rating that qualified her to be hired. However, the manager was not sure if Elauf’s headscarf would violate Abercrombie’s no caps policy and turned to the district manager for clarification. Although Elauf never told the hiring manager that she wore the headscarf for religious reasons, the hiring manager believed this to be the case and communicated this to the district manager. The district manager told the hiring manager that the scarf, whether worn for religious or otherwise, would violate Abercrombie’s dress code and directed the hiring manager not to hire Elauf, based on the belief that the neutral policy involving "caps" was not discriminatory.

The Supreme Court’s Decision

In an 8-1 decision, the Supreme Court held that: (1) Elauf’s claim against Abercrombie falls under the "disparate treatment" provision; (2) in a disparate treatment claim, under the text of the law, an applicant "need only show that his need for an accommodation was a "motivating factor" in the employer’s decision; and (3) that actual knowledge of the need for an accommodation is not needed to prove an employers’ motive. The majority explained that motive and knowledge are separate concepts. An employer may have actual knowledge of the need for an accommodation, but does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not the employer’s motive. Conversely, an employer who acts with the motive of avoiding an accommodation may violate Title VII even if he or she has no more than an unsubstantiated suspicion that accommodation for a religious observance is necessary.

Whether an employer merely suspects or confirms a need for religious accommodation, an employee or applicant’s religious beliefs/practices may not be a motivating factor in employment decisions. In Abercrombie’s case, because there was evidence that at some point Elauf’s religion became a part of the hiring process discussion, Abercrombie could not prove that religion was not a "motivating factor" in the decision not to hire Elauf.

Going Forward

Neutral employment policies—like Abercrombie’s "no caps" dress code—will be viewed under Title VII’s "disparate treatment" standards. This is significant, because an employer can be found to have discriminated against a religious employee even when applying neutral company-wide policies if the employee can allege and prove that religious status was a "motivating factor" in an unfavorable employment decision. Employers will need to be more mindful of how much they know about an employee/applicant’s religious practice, confirmed or otherwise, in order to determine whether they are legally required to provide an accommodations.. The best practice is not less information but more information; employers should do what they can to obtain positive knowledge of accommodations and avoid risky inferences or innuendo. Below are a few basic practices to limit risk for claims of religious discrimination in the future:

1. Educate hiring managers and employment decision-makers

Ensure that those promoting, managing or terminating employees and those directly interviewing applicants know how to make employment decisions free of religious discrimination. This includes knowing which questions to ask, what type of accommodation is or may be required, and why/how each employment decision is based on job requirements and needs, and not on discriminatory measures.

2. Ask the right questions

In the hiring context, employers should design interview questions that can elicit the necessary employment information without referring to religion or any other protected trait. These questions should be given to all applicants. Examples would be to ask applicants about their availability on weekends or whether they can adhere to all dress codes or other policies. However, these questions should only be used if they are actually related to a genuine concern of the company and not simply fishing for information on a person’s religion (e.g., asking an applicant about weekend availability when the company does not operate on weekends). If a position has certain unavoidable requirements, an employer should ask all applicants if they can meet such requirements instead of making assumptions that they cannot.

3. Determine the unavoidable requirements

Underlying the Abercrombie decision is the assumption that allowing Elauf to wear a headscarf would not have been an "undue burden" for the company. In order to avoid the same result, employers should determine, before the hiring process begins, which of its policies are employment preferences and which are legitimate employment requirements.

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