By Dawn Reddy Solowey and Ariel Cudkowicz

It’s the decision the employment bar has been waiting for: on June 1, 2015, in a 8-1 ruling, the U.S. Supreme Court sided with the EEOC in the religious discrimination case of EEOC v. Abercrombie & Fitch Stores, Inc., which we’ve blogged about before.


Justice Scalia — despite having expressed some affinity for Abercrombie’s position at oral argument — wrote the majority opinion.

The Court recognized that Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that could be accommodated without undue hardship.  The Court then framed the question presented as “whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.”

The Court rejected Abercrombie’s argument that an applicant cannot show disparate treatment without first showing that the employer had “actual knowledge” of the applicant’s need for accommodation.  Instead, the Court held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

The bottom line?  The Court held that “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.”

The Facts

Teenager Samantha Elauf, a Muslim who wore a headscarf for religious reasons, applied for a sales floor position in an Abercrombie store.  At the job interview, to which she wore the headscarf, Ms. Elauf said nothing about the fact that she was Muslim.  In the interview, she did not bring up the headscarf, or say that she wore it for religious reasons, that she felt a religious obligation to do so, or that she would need an accommodation from the retailer’s “Look Policy.”  But her interviewer assumed that Ms. Elauf was Muslim, and wore the head-covering for religious reasons and that influenced the company’s decision not to hire her.

The Courts Below

The district court granted summary judgment for the EEOC but the Tenth Circuit reversed and granted summary judgment to Abercrombie.  The Tenth Circuit held that the burden is on the applicant to advise the employer of a religious practice that conflicts with a job requirement, because the applicant is uniquely qualified to know those personal religious beliefs and whether an accommodation is necessary.  The appeals court rejected the EEOC’s argument that the employer has a duty to attempt reasonable accommodation when the employer has notice of the conflict from any source.

The Supreme Court’s Analysis

In reaching its holding that an applicant need only show that his need for accommodation was a motivating factor in the employer’s decision, the Court relied primarily on an analysis of Title VII’s text.

The Court reasoned that Title VII’s disparate-treatment provision prohibits an employer from using an applicant’s religious practice as a motivating factor in failing to hire the applicant.  The Court noted that Title VII “does not impose a knowledge requirement,” and declined “to add words to the law.”  Instead, the Court reasoned that the statute’s “intentional discrimination provision prohibits certain motives,” regardless of the employer’s knowledge.

In distinguishing between motive and knowledge, the Court held that an employer who had actual knowledge of the applicant’s need for a religious accommodation, but did not have that as a motive for refusing to hire the applicant, would not violate Title VII.  By contrast, an employer whose motive in refusing to hire is the desire to avoid an accommodation — even if based on “no more than an unsubstantiated suspicion that accommodation would be needed”– may violate Title VII.

The Court acknowledged that if the applicant requested an accommodation, or the employer was certain that the applicant followed a practice that would require accommodation, it may be easier to infer motive, but held that neither is required for liability.

But the Court buried an important caveat in a footnote, declining to reach the question of whether the motive requirement can be met without a showing that the “employer at least suspects that the practice in question is a religious practice.”  The Court ducked the question because it was undisputed here that Abercrombie at least suspected that Ms. Elauf wore the hijab for religious reasons.

Sidestepping Abercrombie’s concerns that without an actual knowledge requirement, employers will be forced to ask about religion, or engage in stereotyping, the Court offered an example that highlights the practical pitfalls for employers.  The Court posited an employer who thinks, but does not know for sure, that an applicant may be an orthodox Jew who will observe the Sabbath and avoid Saturday work.  In that case, the Court held, if the applicant actually required the accommodation, and the employer’s desire to avoid it was a motivating factor in not hiring the employee, the employer would violate Title VII.

The Court rejected Abercrombie’s defense that its “Look” policy was a neutral policy that could not be discriminatory, emphasizing that Title VII demands more than “mere neutrality with regard to religious practices.”  The Court also rejected Abercrombie’s position that a claim based on failure to accommodate an applicant’s religious practice must be raised as a disparate-impact, rather than a disparate-treatment, claim.

Concurrence & Dissent

Justice Alito concurred primarily to opine that he would hold that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason — the question the majority sidestepped.  Only Justice Thomas dissented, reasoning that “Mere application of a neutral policy cannot constitute intentional discrimination,” and therefore that the EEOC could not advance a disparate-treatment claim in this case.

What Should Employers Do Now?

There is still a lot of wisdom in the longstanding advice to employers to avoid asking applicants about religion, or making assumptions based on stereotypes.  But in light of this decision, an employer who has any reason to believe, or even suspect, that accommodation may be necessary—from any source—will need to consider engaging in an interactive process with the applicant.

Depending on the circumstances, that process may entail explaining to the applicant the relevant work rule, inquiring as to whether the applicant could comply with the rule or would require an accommodation, and analyzing whether any required accommodation is reasonable or would impose an undue hardship.

Employers should consult counsel who specializes in this area for guidance on how to meet the obligations imposed by the Court’s ruling while minimizing the risk of other claims, as well as ensuring compliance with state or local religious discrimination laws, which can vary from federal law.

Finally, employers should update their internal hiring practices training to ensure that hiring managers and interviewers are aware of best practices following the Supreme Court’s ruling.