In a much anticipated decision, the United States Supreme Court today held that Abercrombie & Fitch violated the prohibition against religious discrimination, as set forth in Title VII of the Civil Rights Act of 1964, by refusing to hire a Muslim applicant who wore a headscarf (a hijab) during a job interview. In so holding, the Court rejected Abercrombie & Fitch’s argument that an employer cannot be liable for discrimination unless it can be shown that the employer had actual knowledge of the applicant’s need for a religious accommodation. Instead, the Court stated, an employer violates Title VII if its actions are motivated by a desire to avoid accommodating a religious practice even if the employer is not certain that an accommodation will be needed. Importantly, the Court left for another day the question whether an employer may be liable under Title VII if it has neither knowledge nor suspicion that an applicant or employee may require a religious accommodation.
By way of background, Abercrombie stores follow a “Look Policy” that requires sales employees (called “models”) to dress in clothes consistent with clothes and shoes sold in the store, prohibits employees from wearing caps, and in other ways requires models to embody the Abercrombie brand. Applicants are not required to comply with the Looks Policy when they interview, but must do so if hired.
Applicant Samantha Elauf, a Muslim who always wore a hijab in public, applied for a job as a model at an Abercrombie Kids store. Ms. Elauf was interviewed while wearing a black hijab. Ms. Elauf never explicitly stated that she wore a hijab for religious reasons, or asked for an accommodation. And, although Abercrombie suspected that Ms. Elauf wore a hijab for religious purposes, it never asked.
Although the interviewer was impressed with Ms. Elauf, she was uncertain whether Abercrombie would grant an exception to its Look Policy to accommodate her hijab. After consultation, and after discussing the assumption that Ms. Elauf wore the hijab for religious purposes with various managers, the decision was made not to offer Ms. Elauf a position because it would violate the Look Policy.
The EEOC sued on Ms. Elauf’s behalf. A federal district court in Tulsa, Oklahoma granted summary judgment in favor of the EEOC, finding that Abercrombie discriminated against Ms. Elauf as a matter of law. Abercrombie appealed, and continued to enforce its Look Policy to prohibit the wearing of hijabs (click here for a discussion of a case involving Abercrombie’s decision to prohibit employees from wearing hijabs).
In 2013, the United States Court of Appeals for the 10th Circuit reversed and awarded Abercrombie summary judgment. In so holding, the Tenth Circuit concluded that y an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his or her need for a religion-based accommodation. In other words, the court found, Abercrombie had no obligation to provide an accommodation unless explicitly asked to do so. The EEOC appealed, leading to today’s decision.
The legal standards applicable to religious accommodations differ from the standards applicable to accommodations for pregnancy or for disability. Nevertheless, today’s decision underscores that “don’t ask, don’t tell” is not a reasonable way to deal with a suspicion that a workplace accommodation may be needed.