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EEOC v. Abercrombie & Fitch Stores, The Supreme Court Tackles Religious Discrimination Under Title VII

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On June 1, 2015, the United States Supreme Court addressed how an employer can be liable for intentional religious discrimination under Title VII of the Civil Rights Act of 1964. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14—86, the Court ruled that an employee or prospective employee may prove intentional religious discrimination when an employer assumes, but does not necessarily know, that the individual might need a religious accommodation.

The case arose out of a dispute between Abercrombie & Fitch Stores, Inc. ("Abercrombie") and Samantha Elauf, a practicing Muslim who applied for a job in a clothing store. Abercrombie maintains a "Look Policy," or employee dress code, which prohibits employees from wearing "caps" while working. Consistent with her faith, Elauf wore a headscarf to her interview. The interviewer rated Elauf highly enough to be hired, but the store did not hire Elauf. The district manager had instructed the store to not hire Elauf because such a headscarf would violate the "Look Policy" ban on caps. (Because of the posture of the case, the Supreme Court had to consider the facts in a light most favorable to the EEOC and Elauf, so some facts may be disputed.)

The Equal Employment Opportunity Commission ("EEOC") sued Abercrombie on Elauf's behalf. The trial court ruled in favor of the EEOC and awarded Elauf $20,000 in damages, but a court of appeals reversed.

The Supreme Court ruled for the EEOC and Elauf. It found that there was evidence that Elauf's religion was a "motivating factor" in the employment decision. Even if there is not a request for accommodation, an employer can still intentionally discriminate against an applicant or employee by assuming that the individual needs an accommodation or cannot be accommodated.

Practical Implications

Abercrombie & Fitch Stores serves as a reminder that employers should train managers and individuals involved in employment decisions to not make assumptions about whether an applicant or employee might need a religious accommodation.

Although religious accommodation standards differ slightly from disability accommodation standards, employers should treat religion accommodation issues in thoughtful, problem-solving ways, as most employers do when considering disability accommodations. The laws governing the extent of reasonable accommodations differ some from disability accommodations, but requested accommodations should be evaluated in a similar manner. Employers should be careful not to assume that a religious accommodation is needed, but if an accommodation is requested, employers should work with an employee to evaluate whether an accommodation is reasonable. Employers should accommodate when reasonable, explore alternatives to requested accommodations when the requested accommodation is not reasonable, and, if an employer is not able to make an accommodation, it should be sure that there is a clear record of the reasons.

Finally, when making employment decisions after a person has requested a religious accommodation, employers should ensure that the decision is for performance or conduct related reasons and ensure that best practices for performance management or discipline have been followed before taking any adverse action against an employee.