By R. Joseph Leibovich
The United States Supreme Court on June 1 issued a ruling on religious accommodations under Title VII of the Civil Rights Act of 1964 that should effect how employers make hiring decisions.
In EEOC v. Abercrombie & Fitch Stores, the clothing store refused to hire Samantha Elauf, a practicing Muslim. At the time she applied for a position she was wearing a head scarf as mandated by her religion. The individual interviewing her was concerned this violated Abercrombie & Fitch’s “Look” policy, that forbids caps.
Although no one asked Ms. Elauf what her religion was, the interviewer told her superiors that she felt the scarf was likely due to religious reasons. She was told that the scarf would violate the Look policy, and she was told not to hire Ms. Elauf.
The EEOC sued Abercrombie & Fitch alleging religious discrimination against Ms. Elauf, and the agency won on summary judgment. The Tenth Circuit reversed, holding that an employer cannot be liable for failing to provide a religious accommodation if it has no actual knowledge of the need for one.
The Supreme Court reversed the Tenth Circuit in an 8-1 opinion written by Justice Scalia. The opinion held that actual knowledge is not required, and “Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”
Therefore, a “neutral” policy can lead to a disparate-treatment claim when an employer decides not to hire a person because of potential religious accommodations. As the Court explained,”…the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”
Employers need to realize that merely avoiding asking someone’s religion will not shield them from liability if they are, indeed, refusing to hire a person to avoid a religious accommodation. In short, a neutral policy and claiming ignorance of an applicant’s religion will not protect employers if they decide not to hire someone because of a perceived religious accommodation, even if the employer technically does not know for sure that the individual is even a member of that religion. The courts will be analyzing an employer’s intent, and not it’s knowledge, and that can make things very interesting.