EEOC v. Abercrombie & Fitch Stores, Inc.: An Employer is Not Required to Have Actual Knowledge of the Need to Reasonably Accommodate the Religious Practice of An Applicant or Employee

Title VII makes it unlawful for an employer to fail or refuse to hire an individual because of such individual’s religion. It also prohibits employers from limiting, segregating, or classifying its employees or applicants for employment in any way that would deprive any individual of employment opportunities because of the individual’s religion. Moreover, the word “religion” is broadly defined as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate a religious observance or practice without undue hardship on the conduct of the employer’s business.”

In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court decided whether Title VII’s prohibition against failing to accommodate a religious practice absent undue hardship applies only where an applicant has informed the employer of the need for an accommodation. Answering this question in the negative, the Court held that “an applicant need only show that [the] need for an accommodation was a motivating factor in the employer’s decision.”

This case was brought by the Equal Employment Opportunity Commission (EEOC) on behalf of Samantha Elauf, a practicing Muslim, who claimed that Abercrombie & Fitch Stores, Inc. (Abercrombie) failed to accommodate her religious beliefs pursuant to Title VII by failing to hire her for wearing a hijab or headscarf. Elauf interviewed for a position at an Abercrombie retail store with Assistant Manager Heather Cooke. Cooke gave Elauf a favorable rating, but was concerned whether Elauf’s headscarf violated the chain’s “Look Policy.” The “Look Policy,” a dress code Abercrombie imposes on employees to maintain and project a certain company “image,” prohibits “caps,” but fails to define the term. Receiving no answer from her direct supervisor, Cooke escalated her question to District Manager Rachel Johnson. Johnson informed Cooke that Elauf’s headscarf would violate the “Look Policy,” even though Cooke told Johnson that she believed Elauf wore the headscarf because of her faith. Moreover, Johnson directed Cooke not to hire Elauf.

The District Court granted summary judgment in EEOC’s favor and held a trial on the issue of damages. The Court of Appeal for the 10th Circuit reversed and granted summary judgment in Abercrombie’s favor, holding: “Ordinarily, an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant provides the employer with actual knowledge of his need for accommodation.”

Writing for the majority, Justice Antonin Scalia reasoned that, although Title VII expresses the term “because of,” and although this term typically implies “but for causation,” Title VII relaxes the standard by “prohibiting even making a protected characteristic a motivating factor in an employment decision.” Moreover, unlike the Americans with Disabilities Act (ADA), which prohibits an employer’s failure to make “reasonable accommodations to the known physical or mental limitations” of an applicant or employee, Title VII does not expressly impose a knowledge requirement. Instead, Title VII prohibits certain motives regardless of the employer’s knowledge. That is, an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. To illustrate the difference between motive and knowledge, Scalia wrote that, “an employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.”

Furthermore, Scalia wrote that allocating the burden of raising a religious conflict on an applicant or employee would amount to “add[ing] words to the law to produce what is thought to be a desirable result…We construe Title VII’s silence as exactly that: silence.” While a request for accommodation or the employer’s certainty that the practice exists may make it easier to infer motive, it is not a necessary condition of liability. Arguably, however, Title VII’s motive requirement is not met unless the employer at least suspects that the practice in question is a religious practice. Scalia noted that, in the present case, Abercrombie, through Cooke, knew and/or suspected that Elauf wore a headscarf for religious reasons.