The U.S. Supreme Court’s decision this week that an employer may not make an applicant’s religious practice a factor in employment decisions, even if the employer does not have actual knowledge that the practice was religious in nature, gives employers plenty to think about in terms of their hiring and business practices. Employers are now faced with a new set of questions on how to ensure they do not run afoul of this decision.

The widely publicized case, EEOC v. Abercrombie & Fitch Stores, Inc., 2015 U.S. Lexis 3718, stems from the retailer’s failure to hire a job applicant because her hijab, a head scarf, did not conform to the company’s “Look Policy.” The Look Policy prohibited sales staff (what it calls “models”) from wearing “caps,” a term the company’s policy did not define.

To recap the case, in 2008, Samantha Elauf, then 17 years old and a claimed practicing Muslim, appeared for an interview for a model position with the Abercrombie & Fitch store at the Woodland Hills Mall in Tulsa, Oklahoma wearing a black hijab. During the course of the interview, Elauf made no mention of her religion, her headscarf, or the need for an accommodation to address the conflict between the company’s Look Policy and the headscarf. Although Elauf was found to be otherwise suitable for the model position, she was not hired because she wore the headscarf, which was deemed to be inconsistent with the company’s Look Policy.

The district court granted summary judgment in favor of the EEOC. The Court of Appeals for the Tenth Circuit reversed, finding that the company could not be held liable because Elauf did not directly and explicitly notify the company that she wore the headscarf for religious reasons and would need an exemption from the retailer’s Look Policy.

The Supreme Court agreed to hear the case on October 2, 2014 and issued its decision this week, overturning the decision of the Tenth Circuit. In so doing, the court, in its Majority Opinion authored by Justice Scalia, explained that under Title VII, an applicant need only show that his or her need for an accommodation was a motivating factor in the employer’s decision. Contrary to the opinion of the Tenth Circuit, the Supreme Court held that evidence that the employer had “actual knowledge” of the need for an accommodation is not required and that the applicant need not specifically request an accommodation. The court distinguished the language of Title VII from the language of the Americans with Disabilities Act, which specifically requires knowledge on the part of the employer of the employee’s physical or mental limitations requiring accommodation. The court also rejected the proposition advanced by Justice Thomas in his dissenting opinion that the Look Policy was a neutral policy applied to all applicants and as such, it could not constitute “intentional discrimination” as prohibited by Title VII. In this regard, the court cautioned, “Title VII requires otherwise-neutral policies to give way to the need for accommodation.”

Impact of the Abercrombie Decision

While it is difficult to imagine how a religious practice can be a motivating factor if the employer does not know that the practice in question is done for religious reasons, the court made clear in footnote 3 of the opinion that that issue was not before it because the record established that Abercrombie knew, or at least suspected, that the scarf worn by Elauf was for religious reasons. The court noted that an employer, who acts with the motive of avoiding accommodation, may violate Title VII “even if he has no more that an unsubstantiated suspicion that accommodation would be needed.” The case was remanded to the Tenth Circuit for further consideration consistent with the Supreme Court’s opinion.

So, how does an employer ensure that its hiring practices do not run afoul of the Abercrombie decision?

First, use common sense and engage in an interactive dialogue with your applicants. While this may seem counterintuitive to the longstanding practice of avoiding questions about an applicant’s religious beliefs or making assumptions about those beliefs, asking whether an applicant can comply with a dress code policy either with or without an accommodation is really all that would appear to be required.

Second, do not assume that supposedly “neutral policies” are in compliance with Title VII. Even if a policy is applied to all applicants or employees equally, Title VII requires more. As the Abercrombie decision makes clear, religion, and presumably other classes protected by Title VII, require the employer to engage in an interactive process and afford a reasonable accommodation to the applicant or employee in the absence of an undue hardship on the conduct of the employer’s business.

Lastly, the impact of the decision extends far beyond the area of religious discrimination and dress codes. Employers should also be cautious about assessments and assumptions that are made throughout the hiring process with respect to sex, gender, national origin, pregnancy, and even with regard to presumed disabilities or physical limitations. Those assessments and assumptions should be carefully explored through an interactive process with the applicant to ensure that decisions with respect to hiring are not motivated by a desire to avoid a needed accommodation. Therefore, management training and continued education is crucial.

Because each situation is unique, employers should carefully review any dress code policies with counsel, particularly as they may conflict with attire worn for religious reasons.

If you have any questions about your company’s policies, please contact:

• Madeline S. Baio (267.519.6825; mbaio@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Employment and Labor Practice Group.