A practicing Muslim job applicant, consistent with her understanding of her religion’s requirements, wore a headscarf, or hijab, when she interviewed for a sales position with a retailer that promoted its so-called “Eastern collegiate preppy look.” She never mentioned the hijab she was wearing or its religious significance to her. The interviewer did not ask the applicant about it, nor did he, after seeing the hijab, give her a copy of the company’s dress code and ask her if she would have any difficulty complying.  The young woman was rejected under the retailer’s “Look Policy,” which banned all headgear, religious or otherwise, from being worn on duty.

 

The Equal Employment Opportunity Commission (“EEOC”) brought suit on the applicant’s behalf, contending that the retailer violated Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits employers from refusing to hire because of an applicant’s religious practices when the practices could be reasonably accommodated without undue hardship. A jury found in favor of the EEOC and awarded the applicant $20,000, but a federal appeals court reversed and granted the employer summary judgment dismissing the case. The EEOC sought Supreme Court review.

The Supreme Court held that to prevail in a discrimination claim under Title VII a rejected applicant for employment must only show that his or her need for religious accommodation was a motivating factor in the employer’s decision, not that the employer had actual knowledge of the applicant’s need.  EEOC v. Abercrombie & Fitch Stores, Inc., 2015 U.S. LEXIS 3718 (Jun. 1, 2015).

 

The Court emphatically stated that with respect to religion, any argument that a neutral policy (such as the retailer’s “Look Policy”) cannot constitute “intentional discrimination” is unavailing. “Title VII,” the Court majority stated, “does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of such individual’s ‘religious observance and practice.’”

 

The takeaway:

 

  • Applicants do not necessarily need to notify employers of their religious-based need for an accommodation. Thus, even if there is an unexpressed religious need for the accommodation, when an employer intentionally fails to accommodate that need, it may be found to have violated Title VII; and

 

  • Employers should proactively discuss possible religious-based needs with applicants to determine whether and what accommodations may be required to comply with Title VII and other anti-discrimination laws.