The U.S. Supreme Court’s decision on June 1, 2015, in EEOC v. Abercrombie & Fitch Stores, Inc. (FEP Cases 157) has resulted in a deluge of case summaries and commentaries, and engendered some level of panic among employers, who believe that the case has created a seismic shift in hiring criteria. But has it, really?
The basic facts of the case are:
- Abercrombie has a policy that prohibits “caps” as too informal for its stores’ desired image;
- Samantha Elauf is a practicing Muslim who wears a headscarf, consistent with her understanding of her religion’s requirements;
- Elauf applied for a sales position at an Abercrombie store, and was interviewed for the position by the store’s assistant manager;
- Elauf was given a rating that qualified her to be hired;
- After the interview and rating, the assistant manager sought guidance – first from the store manager, and then from the district manager – as to whether Elauf’s headscarf would violate the “no caps” policy;
- The assistant manager opined to the district manager, without actual knowledge, that Elauf wore the headscarf for religious reasons;
- The district manager determined, without further investigation or additional discussion with Elauf, that the headscarf would violate the company’s “no caps” policy;
- Elauf was not hired for the position.
The EEOC filed a lawsuit on Elauf’s behalf, claiming that the refusal to hire Elauf violated Title VII’s ban on religious discrimination. The district court granted the EEOC’s motion for summary judgment on liability; and a jury awarded $20,000 in damages to Elauf.
The company appealed to the 10th U.S. Circuit Court of Appeals, which reversed the district court’s decision and awarded summary judgement in favor of the employer. That decision was based on the conclusion that an employer cannot be held liable under Title VII for failure to accommodate a religious practice until the applicant/employee provides the employer with actual knowledge of the need for an accommodation.
When the EEOC appealed that holding, the U.S. Supreme Court granted certiorari and reviewed the case. The Supreme Court reversed the Tenth Circuit’s decision, and remanded the matter back to the lower court for further consideration. The basis of that remand was the Supreme Court’s interpretation of the language in the applicable statute, Title VII of the Civil Rights Act of 1964, as amended.
Title VII prohibits a prospective employer from refusing to hire an individual applicant in order to avoid accommodating a religious practice that could be accommodated without undue hardship to the company.
Title VII does not impose a “knowledge” condition in its prohibition of discrimination. Instead, Section 2000e-(a)(1) states it shall be an unlawful employment practice for an employer:
“to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .”
Significantly, and as noted by the Supreme Court, the “because of” language of Title VII imposes no specific knowledge requirement, although some federal anti-discrimination statutes do. The Americans with Disabilities Act (ADA), for example, defines discrimination to include an employer’s failure to make accommodation for “known” physical or mental disabilities.
This is where the Supreme Court’s opinion gets a little esoteric, and includes the statement that employers now are tripping over: “Motive and knowledge are separate concepts.” However, the Court provides an explanation for that phrase that forms the crux of the Court’s opinion:
An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding the accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
This paragraph provides direction to employers, and should help to lessen the panic among those who make hiring decisions. Notice that the Court defines the “motive” requirement as including at least an “unsubstantiated suspicion” of the need for an accommodation. This eliminates the circumstance where there is not only a lack of knowledge, but absolutely no reason to suspect that an individual’s appearance/dress/ornamentation is related to his or her religion.
It also is noteworthy that the Court did not find that Abercrombie was liable for hiring discrimination – it simply remanded the case for the district court to revisit the matter under the rationale provided and the facts of the case.
What are the take-aways from this case? There are two: (1) hiring procedures should be reviewed (and supervisor training provided) to assure consistency in the questions asked and the criteria imposed for new employees; and (2) when an issue of religion is raised – either directly by an applicant, or indirectly, through an interviewer’s “suspicion” that a quality or characteristic contradicts company policy – further attention should be paid.
At the least, the relevant company policy should be discussed with the individual (“Our company has a policy against headwear – will you have any difficulty complying with that?”). Once the issue is raised, it can be interactively discussed to determine whether an accommodation is possible without undue hardship to the company.
No panic required, right?