The much-awaited ruling in the Abercrombie & Fitch “hijab case” is here. Abercrombie & Fitch refused to hire 17-year old Samantha Elauf, because the headscarf she wore pursuant to Muslim practices (which she was wearing at her job interview) conflicted with Abercrombie’s “look” policy, which prohibited pretty much any head coverings. (Click here for a review.) The US District Court (i.e. the “trial court”) agreed with the EEOC that Ms. Elauf had a legitimate religious discrimination claim. The 10th Circuit Court of Appeals reversed, ruling that an employer cannot be liable for failure to accommodate a religious practice when an applicant does not provide actual knowledge of the need for the accommodation. The US Supreme Court in an 8-1 decision, reversed the 10th Circuit’s ruling. Join The EmpLAWyerologist after the jump to find out why…
Personally I am not surprised by the ruling, because all the indications at oral argument were that the justices were not too sympathetic to Abercrombie. Frankly, the facts were not good ones for Abercrombie to argue. Abercrombie argued that an employee has to provide the employer actual knowledge of the need for accommodation of a religious practice. The manager who interviewed Ms. Elauf saw the hijab, but did not ask–and Ms. Elauf did not volunteer any information either. The manager, did, however surmise that the hijab indicated that Ms. Elauf was a practicing Muslim, and that there was at least a question as to how to proceed with such a candidate, given Abercrombie’s “look” policy. That was the problem.
Abercrombie argued that it didn’t have actual knowledge, because Ms. Elauf didn’t say anything, yet the facts showed that Abercrombie clearly knew or at least suspected that Ms. Elauf’s wearing a hijab was in fact a religious practice–and based a hiring decision on it. The majority of the 9 justices said actual knowledge was not the issue and not required here. According to the majority’s reasoning the violation lies in the fact that religion was a motivating factor in Abercrombie’s decision. In other words, Abercrombie assumed Ms. Elauf would request an accommodation and in its desire to avoid making such an accommodation decided not to hire her. Abercrombie refused to hire Ms. Elauf because of her religion, and that is discrimination. Justice Scalia, writing for the majority said “An employer may not make an applicant’s religious practice, confirmed or otherwise a factor in employment decisions.” The majority also relied on the fact that the relevant section of Title VII did not impose a knowledge requirement, whereas other statutes, (the ADA is a prime example) do require actual knowledge.
Wait a minute. How can you have a (religiously) discriminatory motive without actual knowledge of someone’s religious practice or the need for an accommodation for that practice? The majority opinion answers that question as follows:
Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, and 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.
Thus, 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.
That is what happened here. The Court was clearly upset by the fact that Abercrombie chose not to hire Ms. Elauf out of a desire to avoid providing any accommodation for religious reasons and avoid any compromising of its “look” policy.
Justice Alito in his concurring opinion actually underscores the real problem the facts presented for Abercrombie. (FYI, a concurring opinion is one where the writer concurs in the result but not the reasoning the majority used to achieve its result), Justice Alito felt that there should be a knowledge requirement, but that the ruling would otherwise be the same here, because the facts clearly showed that Abercrombie did now Ms. Elauf would need an accommodation.
Even if the majority had taken Justice Thomas’ dissenting view, it is unlikely that Abercrombie would ultimately have fared any better. Justice Thomas saw the “look” policy as facially neutral in that all head coverings, whether for religious purposes or otherwise were prohibited by the “look” policy, and that Ms. Elauf still had the option to proceed under the disparate-impact theory. That is a harder case to make, and generally, punitive damages are not available to a plaintiff as they are in a disparate treatment case. Perhaps if there had not been any facts establishing a discriminatory motive, Justice Thomas may have ended up writing for the majority. That analysis would still have been unlikely to be of much help to Abercrombie, however.
So what’s the lesson here? Be very careful about imposing dress codes, and make sure you have policies in place for considering requests for accommodations based on religious practices.
Stay tuned for The EmpLAWyerologist’s regular post this Thursday on OSHA and reportable occurrences. Bye for now!