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SCOTUS Confirms Title VII Provides Favored Treatment to Religious Practices

by Katherine Tracy

The United States Supreme Court handed Abercrombie & Fitch’s “Look Policy” a blow in its June 1, 2015, decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. and confirms that Title VII requires favored treatment of religious practices. The Court also held that the employer’s knowledge of the need for a religious accommodation is not necessary to state a disparate treatment (or intentional discrimination) claim based on the failure to accommodate a religious practice.

According to its “Look Policy”, Abercrombie prohibits “caps”—an undefined term in the Policy —as too informal for Abercrombie’s desired image. Samantha Elauf is a practicing Muslim and applied to work at one of Abercrombie’s stores in Oklahoma. Consistent with her understanding of her religion’s requirements, she wears a headscarf and wore her headscarf to her interview with Abercrombie. After the interview, Elauf received a rating that qualified her for hiring.

However, after the interview with Heather Cooke (the assistant store manager), Cooke confirmed with Randall Johnson (the district manager) that Elauf’s headscarf violated Abercrombie’s “Look Policy”. Abercrombie did not offer Elauf the position. The Equal Employment Opportunity Commission brought suit against Abercrombie on Elauf’s behalf. The case reached the Supreme Court after the Tenth Circuit (the federal appeals court that presides over appeals from Kansas federal courts) entered an opinion in Abercrombie’s favor.

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

In reaching this decision, the Court recognized that it “is significant that [42 U.S.C.] § 2000e–2(a)(1) does not impose a knowledge requirement” while other anti-discrimination statutes do (e.g., the Americans With Disabilities Act’s requirement to make reasonable accommodations for “known” limitations). Because Title VII prohibits certain “motives” as the basis for an employment decision, if the employer acts to avoid accommodation then a violation of Title VII occurs.

The Court adopted a “straightforward” rule related to disparate-treatment claims based on a failure to accommodate a religious practice: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” (Emphasis added). The Court’s decision places employers on notice that even unconfirmed religious practices cannot factor into an employer’s employment decision.

The Court also recognized that religious practices must receive favored treatment: “Title VII 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.” (Emphasis added).

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