Religious Garb in the Workplace and the Potential For Employer Liability

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for employee’s religious practices, including religious garments. In an 8-1 ruling, the United States Supreme Court recently decided an employer may be liable for religious discrimination if its hiring decision was motivated by the applicant’s possible need for an accommodation of religious garb. According to the Supreme Court, the applicant does not need to request or notify the employer of a need for religious accommodation for liability to ensue.

Facts: Samantha Elauf, a practicing Muslim, interviewed for a position in an Abercrombie retail store with Heather Cooke, the store’s assistant manager. Elauf wore a headscarf in the interview but never mentioned that it was part of her Muslim observance and that she would need accommodation for her religious garb.

Using Abercrombie’s system for evaluating applicants, Cooke gave Elauf a rating that made her eligible for employment. However, Cooke was concerned Elauf’s headscarf would conflict with Abercrombie’s “Look Policy” governing employees’ dress to ensure it is consistent with the image Abercrombie seeks to project. Under the Look Policy, employees are prohibited from wearing “caps” on their head. After Cooke informed the district manager that she believed Elauf wore her headscarf for religious reasons, the district manager noted that all headwear violated the Look Policy and directed Cooke not to hire Elauf.

Subsequently, the Equal Employment Opportunity Commission (“EEOC”) filed an action against Abercrombie alleging that the failure to hire Elauf violated Title VII of the Civil Rights Act. The District Court for the Northern District of Oklahoma agreed with the EEOC. On appeal, the Tenth Circuit reversed, holding that an employer cannot be liable under Title VII for failure to accommodate a religious practice until the applicant provides the employer with actual knowledge of his or her need for religious accommodation. The Supreme Court rejected the Tenth Circuit’s analysis and sided with the EEOC.

Holding: the Supreme Court rejected Abercrombie’s argument that to prevail on a religious discrimination claim an applicant must show an employer had actual knowledge of an applicant’s need for a religious accommodation.  Rather, the Court held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” The Court observed that unlike the Americans with Disabilities Act that only requires employers to accommodate the known disabilities of an the individual, Title VII does not impose a actual knowledge requirement, only a motive requirement. The test of liability under Title VII is whether the employer’s motive in refusing to hire was the desire to avoid having to make a religious accommodation, even if based on “no more than an unsubstantiated suspicion that an accommodation would be needed.”

Despite the rejection of an actual notice requirement, the Court left the door open for a defense to claims by observing that motive requirement would not be met absent some evidence that “the employer at least suspects that the practice in question was a religious practice.”  Moreover, the Court pointed out that an employer would not violate Title VII by refusing to hire an applicant known to need an accommodation, so long as avoiding that accommodation was not a motivating factor in the hiring decision.

The Supreme Court also held it is irrelevant that Abercrombie’s Look Policy is a neutral policy that applied to all without regard to religion because Title VII demands that neutral policies give way to the need for an accommodation. The Supreme Court reiterated the principle that religious practices are given favored treatment, rather than being treated no worse than other practices.

Takeaway: In light of this decision, employers should establish and/or review their religious accommodation policies along with their hiring and other employment policies to ensure consistency with this opinion.

Moreover, an employer who has any reason to believe, or even suspect, that a religious accommodation may be necessary should consider initiating a conversation with the individual that is confined to the job’s requirements and whether the individual can fulfill those duties with or without a reasonable accommodation before making any employment decision. However, employers should be cautious in these conversations not make specific inquiries into an individual’s religious beliefs because these types of questions may lead to a religious discrimination claim. Conversely, if there is no reason to believe that a religious accommodation may be necessary, the issue need not be raised.