Supreme Court Requires Accommodation for Religious Employees

In 2008, Samantha Elauf, a Muslim teenager who wears a headscarf, applied for a position with Abercrombie & Fitch, a clothing retailer. She was qualified for the position and the Abercrombie employee who interviewed her acknowledged as much, giving her an interview score that should have led the company to hire her. Instead, Abercrombie rejected her application, having determined that the headscarf she wore violated the store’s “Look Policy,” which prohibited all headwear, religious or otherwise. On Monday, the Supreme Court issued a decision condemning Abercrombie’s actions as discriminatory. The case is a victory for employees who should not have to choose between their religions and their jobs, barring extreme circumstances. The Court rejected Abercrombie’s argument that a job applicant can only prevail on a discrimination claim when she can show that the employer had “actual knowledge” of the need for an accommodation and instead determined that “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.” In so doing, the Court made clear that if the employer is motivated by the desire to avoid the potential need to accommodate, it is irrelevant that the need for the accommodation has not been confirmed by the applicant. The intentional discrimination provision of Title VII, which prohibits discrimination based on religion, prohibits “motives, regardless of the state of the actor’s knowledge.” Thus, Abercrombie could not decline to hire Ms. Elauf because of fears that she might ask for an exception to the no headwear policy.

The Court also made clear that Title VII demands more than “mere neutrality” when it comes to religious practices. Thus, although the “Look Policy” may have equally impacted those who wore headwear for both religious and nonreligious reasons, Abercrombie was required to accommodate Ms. Elauf’s religious observance and practice by making an exception to its neutral rule. “An employer,” the Court majority wrote, “is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an ‘aspect of religious … practice,’ it is no response that the subsequent failure to hire was due to an otherwise neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”