Avoiding Liability After EEOC v. Abercrombie
In a recent Supreme Court decision in Equal Employment Opportunity Commission, v. Abercrombie & Fitch Stores, Inc. (135 S.Ct. 2028 (2015), Abercrombie & Fitch (“Abercrombie”) was found to have violated Title VII of the Civil Rights Act of 1964 in connection with the interview and subsequent treatment of Samantha Elauf.
During her interview with a store assistant manager, Elauf, in accordance with her Muslim religious beliefs, was wearing a head scarf. (Religion was not discussed during the interview and the interviewer assumed Elauf would remove her the head scarf while working for Abercrombie in accordance with the Abercrombie “Look Policy” that governs employee dress.) The “Look Policy” forbade the wearing of caps or headwear, among other things. The assistant manager determined that Elauf was qualified to work at the Abercrombie store, but questioned whether her head scarf violated the “Look Policy”. An inquiry was made to an Abercrombie District Manager who directed the assistant manager not to hire Elauf because her wearing of the head scarf while working would violate the “Look Policy”
The Equal Employment Opportunity Commission (the “EEOC”) sued Abercrombie and prevailed at the District Court level, successfully arguing that Abercrombie failed to accommodate Elauf’s religious beliefs. Abercrombie appealed to the U.S. Court of Appeals for the 10th Circuit (the “10th Circuit”) claiming that “an employer cannot be liable under Title VII [of the Civil Rights Act of 1964] for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation.” (Emphasis added.) The 10th Circuit granted summary judgment in favor of Abercrombie on that basis.
The Supreme Court rejected the actual knowledge standard adopted by the 10th Circuit. In its 8-1 decision authored by Justice Scalia, the Court held “[a]n 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 maybe 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.” (Emphasis added.)
Uploaded by Gustafson Nicolai pc: Adam Nicolai, Esq. and Ryan Gustafson, Esq.
Contributing: Diana Nguyen and Andrew Cernak