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. 

Seventh Circuit Holds School District’s Graduation Ceremony at Local Church Violates First Amendment

September 14, 2012

By: Adam Dauksas

Recently, the United States Court of Appeals for the Seventh Circuit held that a Wisconsin public school district’s practice of hosting its high school graduation and senior honors ceremonies at a local Christian church violated the Establishment Clause of the First Amendment. Under the test espoused by the U.S. Supreme Court, if a district’s practice lacks a legitimate secular purpose, has the primary effect of endorsing or inhibiting religion, or fosters an excessive entanglement with religion, it will most certainly violate the Establishment Clause.

In Doe v. Elmbrook School District, the Court of Appeals found “[t]he atmosphere of the Church, both inside and outside the sanctuary [where the particular graduation ceremonies occurred], is indisputably and emphatically Christian.”  Prior to receiving their diplomas, students had to pass through the church’s lobby, which contained tables “filled with evangelical literature, much of which addresses children and teens.”  In addition, the lobby’s walls were adorned with Christian banners and posters, and church members even manned religious information booths during some of the ceremonies.

The graduation ceremonies, themselves, took place on the dais at the front end of the church’s sanctuary, over which rested a 15- to 20-foot tall Latin cross that was fixed to the wall. During the ceremonies, students sat in the front rows of the sanctuary’s pews, where Bibles, hymnal books and donation envelopes remained.

After stressing that each judicial determination of whether a particular governmental practice violates the Establishment Clause must be “case-specific,” the Seventh Circuit in Doe concluded “that conducting a public school graduation ceremony in a church – one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join ‘school ministries’ – runs afoul of the First Amendment’s Establishment Clause.”   In particular, the Court found that the district’s practice of hosting its graduation ceremonies in such a “proselytizing” environment had the effect of impermissibly endorsing religion, and was religiously coercive.

While the issues and facts presented in Doe are by no means prevalent among Illinois school districts, the case illustrates that a district can violate the First Amendment not only inside the classroom, but also outside of it as well by “summon[ing] students to an offsite location for important ceremonial events” where overt displays of religion are located.  However, other cases have established that churches and religious centers can be permissibly used by public schools for ceremonies, meetings, etc. If your district finds itself needing to borrow such facilities for any of its functions, we urge you to contact an attorney at the Firm to discuss the First Amendment concerns.