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U.S. Supreme Court Rules in Abercrombie & Fitch Case

Employers Cannot Refuse to Hire Applicants Based on Religious Belief or Practice, Even If Not Specifically Asked for an Accommodation

In 2008, Abercrombie & Fitch — a retail clothier known for its specific styles — refused to hire 17-year-old Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy, which prevented the wearing of “caps.” Interestingly, Ms. Elauf was a gavelcustomer of Abercrombie and wore their clothing during the interview.

In 2009, the Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964. That case went to trial, where Ms. Elauf obtained a $20,000 jury verdict. On appeal, the 10th Circuit in 2013 reversed the trial result, ruling that Ms. Elauf did not request an accommodation for her religious practices.

On June 1, 2015, the U.S. Supreme Court, in EEOC v. Abercrombie & Fitch Stores, Inc., overruled the 10th Circuit opinion and held in an 8 – 1 decision written by Justice Antonin Scalia that an employer may not refuse to hire an applicant if the employer was motivated by avoiding the need to accommodate a religious practice. Such behavior violates the prohibition on religious discrimination contained in Title VII of the Civil Rights Act of 1964.

From the EEOC press release:

EEOC General Counsel David Lopez hailed the decision. “At its root, this case is about defending the quintessentially American principles of religious freedom and tolerance,” Lopez said. “This decision is a victory for our increasingly diverse society and we applaud Samantha Elauf’s courage and tenacity in pursuing this matter.”

According to the Supreme Court, “An employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” The court continued that “…to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice confirmed or otherwise, a factor in employment decisions.”

“I was a teenager who loved fashion and was eager to work for Abercrombie & Fitch,” said Elauf. “Observance of my faith should not have prevented me from getting a job. I am glad that I stood up for my rights, and happy that the EEOC was there for me and took my complaint to the courts. I am grateful to the Supreme Court for today’s decision and hope that other people realize that this type of discrimination is wrong and the EEOC is there to help.”

To assist employees and employers in understanding their rights and obligations about accommodations for religious observances, the EEOC has a fact sheet on Religious Garb and Grooming in the Workplace.

The only dissent was by Justice Thomas, former head of the EEOC. He said the Court has drastically changed EEO law by turning this into a direct discrimination case as opposed to analyzing it as an indirect, disparate impact case, which turns on business necessity analysis.

Employers should consider the following practical pointers:

  1. “Dress” or “look” policies that appear “neutral” on their face (no caps, no beards, requirement to work on Saturday) may have a discriminatory effect even where there is no intent to discriminate. When implementing such policies employers should be conscious of the need to reasonably accommodate an applicant’s or employee’s religious practices whether or not the applicant or employee requests any particular accommodation(s).
  2. Employers should clearly communicate to applicants and employees that they will make reasonable efforts to accommodate their religious practices.
  3. Employers should train managers and supervisors on how to recognize religious accommodation requests and consider developing a procedure for processing such requests.

Under Title VII, employers are not required to reasonably accommodate religious observances or practices that would be an undue hardship upon the employer. Whether an accommodation constitutes an undue hardship is determined on a case-by-case basis. Employers who choose to use this defense for failing to provide a reasonable accommodation should be able to articulate specific reasons for the decision.

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