FEDweek

Religious Accommodation Requirements in Hiring

On June 1, 2015, the Supreme Court issued its decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., ___ U.S. ___, No. 14-86. In this private sector discrimination case, the Supreme Court vindicated Title VII’s requirements that employers provide reasonable accommodation for religion in the hiring process.

This holding helps ensure that job applicants, including applicants for federal employment, are not nonselected because they may require religious accommodations (in terms of work attire, schedule, etc.) if hired, absent the agency showing that the likely accommodation would constitute an undue hardship.

Samantha Elauf applied for a job at an Abercrombie & Fitch store in Tulsa, Okla. Elauf is a Muslim who wears a headscarf for religious reasons, and wore such a headscarf to the job interview. Abercrombie & Fitch has a workplace attire policy which covered the position which Elauf had applied for. This policy prohibited head coverings such as Elauf’s headscarf. The interviewer rated Elauf highly for the position, but was concerned that Elauf’s headscarf would conflict with the attire policy. Elauf was never explicitly informed of a possible conflict with the attire policy and asked if she needed reasonable accommodation, nor was Elauf ever asked if she wore her headscarf for religious reasons. Instead, the interviewer notified Abercrombie & Fitch management that she believed Elauf wore a headscarf for religious reasons, and was instructed to not hire Elauf.

After Elauf filed a discrimination complaint with the EEOC, the EEOC decided to sue Abercrombie & Fitch on Elauf’s behalf for violation of Title VII, alleging that Abercrombie & Fitch failed to provide Elauf with religious accommodation. The district court granted the EEOC’s motion for partial summary judgment on liability (798 F.Supp.2d. 1272 (N.D.OK. 2011)). The district court later awarded Elauf $20,000 in damages. Abercrombie & Fitch appealed to the U.S. Court of Appeals for the 10th Circuit.

The 10th Circuit reversed, issuing summary judgment in favor of Abercrombie & Kent (731 F.3d 1106 (10th Cir. 2013)). The 10th Circuit held that Abercrombie & Kent was not obligated to provide Elauf any religious accommodation absent actual knowledge that she would need a reasonable accommodation. The EEOC then appealed to the Supreme Court.

The Supreme Court overturned the 10th Circuit. Writing for the majority, Justice Scalia held that the prohibition on disparate treatment in Title VII (which Justice Scalia applied to the religious accommodation claim) is based on discriminatory motive, irrespective of whether or not the employer has actual knowledge of the need for a possible religious accommodation. Justice Scalia found the 10th Circuit’s holding to be not properly grounded in the text of Title VII. Accordingly, an employer violates Title VII if it refuses to hire an applicant even based on the employer’s perception that the applicant would require a religious reasonable accommodation. As a result, the Supreme Court vacated the 10th Circuit’s decision and remanded for further proceedings.

In concurrence, Justice Alito stated that would have retained the 10th Circuit’s requirement of actual knowledge, but opined that an issue of fact existed as to whether Abercrombie & Fitch had actual knowledge such as to preclude summary judgment. Justice Thomas, dissenting in the result, would affirm the 10th Circuit’s finding of no discrimination in Abercrombie & Fitch’s application of its allegedly facially-neutral attire policy.

* This information is provided by the attorneys at Passman & Kaplan, P.C.