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. 


 July 1, 2013

By Daniel P. Field

Editors’ Note: On June 24, 2013, the U.S. Supreme Court handed down decisions in two employment cases that significantly affect the scope of employment discrimination law, both of which are “friendly” to employers. In this eBlackboard, we review the Court’s interpretation of who is a supervisor for purposes of imputing liability to an employer in Title VII discrimination claims. In our next edition, we will review the stiffer legal standard the Court announced a plaintiff must meet in order to be successful in a retaliation claim under Title VII.

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin,” 42 U.S.C., §2000e-2(a)(1). While this provision obviously was intended to prohibit discrimination with respect to employment decisions that have direct economic consequences, such as termination, demotion and pay cuts, shortly after it was adopted lower courts held that Title VII also reaches the creation or perpetuation of a discriminatory work environment.   Most frequently seen are claims of a “hostile environment” in the workplace.

Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. The burden of proof is on the employee to establish such negligence by a preponderance of the e vidence.  In cases where the harasser is a “supervisor” however, different rules apply.  If the supervisor’s harassment culminates in a tangible employment action, then the employer is strictly liable.  But if no tangible employment action is taken, the em ployer may escape liability by establishing, as an affirmative defense, upon which it bears the burden of proof, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided, e.g., by failing to avail itself of any anti-harassment policies that the employer had in place.

Prior to the decision of the Supreme Court of the United States in the case of Vance v. Ball State University, handed down on June 24, 2013, there was a split in the federal circuit courts of appeals concerning who was considered a supervisor.  Some circuits, including the Seventh, which hears cases arising in Illinois, held that a person was only a supervisor for purposes of Title VII if he or she was empowered by the employer to take tangible employment actions against the employee such as firing, demoting, transferring or disciplining the subordinate employee.  Other circuits had a looser definition and considered anyone that possessed the ability to exercise direction over another’s daily work was considered a supervisor.  The latter definition is the one favored by the United States Equal Employment Opportunity Commission, EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999).

The Supreme Court granted certiorari in the Vance case to resolve the conflict in the circuits.  The Supreme Court has put that conflict to rest by holding that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take “tangible employment action against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”  In doing so the Court noted that it was rejecting the “nebulous” definition of a supervisor advocated in the EEOC Guidance and adopted by several courts of appeals.

The Court noted that the framework of its precedents interpreting Title VII draws a sharp line between co-workers and supervisors.   Co-workers can inflict psychological injuries by creating a hostile work environment but cannot dock another‘s pay nor can one co-worker demote another.  Only a supervisor as defined in Vance has the power to cause direct economic harm by taking a tangible employment action.  Tangible employment decisions fall within the special province of the supervisor.  The supervisor has been empowered by the employer as a distinct class of agent to make economic decisions affecting other employees under his or her control. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.

Under Title VII there are two frameworks where an employer may be vicariously liable for the acts of a supervisor’s harassment.  The first (which results in strict liability) exists when a supervisor actually takes a tangible employment action based on, for example, a subordinate’s refusal to accede to sexual demands.  The second situation (which results in vicarious liability if the employer cannot make out the requisite affirmative defense) is present when no such tangible action is taken, such as creating a hostile environment or making threats to alter a subordinate’s terms or conditions of employment based on e.g., sex, race, color or religion but fails to carry out the threat.  It is the power to carry out such a threat that separates a supervisor from a co-worker in the law of Title VII.