Supreme Court Clarifies Long Reach of Title VII in Religious Discrimination Case

July 1, 2015

By Anthony Scariano III and James A. Petrungaro


            The U.S. Supreme Court has weighed in again on unlawful employment practices. In EEOC v. Abercrombie and Fitch, the court analyzed the religious accommodation standard in Title VII of the Civil Rights Act of 1964, holding that discrimination occurs when an applicant’s need for a religious accommodation is a “motivating factor” behind the decision not to hire. What makes this case significant is that the court held that an employer commits religious discrimination where it fails to hire because of a candidate’s suspected need for a religious accommodation, even if an accommodation was not actually requested or needed.

            Samantha Elauf is a practicing Muslim who, as part of her faith, wears a headscarf. She applied and interviewed for a job at one of Abercrombie’s stores. Abercrombie has a “look policy” that prohibits its employees from wearing caps. Since Abercrombie’s interviewer was concerned that Elauf’s headscarf would violate the policy, the interviewer asked a district manager whether the headscarf would be a problem. In doing so, the interviewer informed the manager that she believed that Elauf wore the headscarf because of her faith. The manager told the interviewer that the look policy would be violated and directed the interviewer not to hire Elauf. The EEOC filed a lawsuit against Abercrombie on Elauf’s behalf, contending that Abercrombie intentionally discriminated against her by refusing to hire her.

            Abercrombie defended its decision by arguing that Elauf never asked for a religious accommodation, meaning Abercrombie did not actually know whether she was wearing her headscarf for religious reasons or whether she desired a religious accommodation. But the Court rejected that position, holding that Abercrombie’s motive was dispositive of the issue, not its actual knowledge. Notably, the Court’s reasoning in this Title VII case stands in stark contrast to its interpretation of the Americans with Disabilities Act, which prohibits discrimination based upon known disabilities.  

            In its decision, the Court also explained title VII’s religious accommodation standard as it applies to otherwise “neutral” workplace policies, such as Abercrombie’s “no cap” rule. There was not much dispute that Abercrombie’s “no cap” policy was neutral. But the Court clarified that a neutral policy cannot overcome Title VII’s religious accommodation standard, stating: “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…”

           The Court’s decision in Abercrombie exhibits the broad reach of anti-discrimination laws. Where employers make discriminatory hiring decisions, even if based upon a mere suspicion of an applicant’s need for religious accommodation, they risk being in violation of Title VII. Employers are also on notice that a religious accommodation need will prevail over neutral employment policies, though the Court did not rule out the usual “undue burden” defense. If you have any questions or concerns about Abercrombie’s application to your interviewing or application process, please do not hesitate to contact us.