EEOC v. Abercrombie: U.S. Supreme Court Clarifies No “Actual Knowledge” Required for Title VII Disparate Treatment Claim

June 10, 2015

Earlier this month, the U.S. Supreme Court dispelled any doubt that Title VII precludes employers from "mak[ing] an applicant's religious practice, confirmed or otherwise, a factor in employment decisions." Explaining that Title VII "prohibits certain motives, regardless of the state of the actor's knowledge," the Supreme Court rejected the idea that the absence of actual knowledge can insulate an employer from Title VII liability.

The Case

Samantha Elauf, a Muslim teenager wearing a headscarf to her job interview, applied for a position at an Abercrombie & Fitch store. At the time, Abercrombie had what it called a "Look Policy," which precluded employees from wearing headwear of any kind at work. Although Elauf was qualified for the position, she was not hired because Abercrombie believed that she would be unable to comply with the Look Policy. After Elauf filed a discrimination charge, the Equal Employment Opportunity Commission (EEOC) filed suit on her behalf in U.S. District Court in Oklahoma. The suit claimed that Abercrombie's refusal to hire Elauf violated Title VII's prohibition on discrimination because of religion. Elauf prevailed in the trial court, but the 10th Circuit Court of Appeals reversed and entered judgment in Abercrombie's favor. The court concluded that the retailer could not be liable under Title VII for failing to accommodate Elauf's religious practice because it did not have actual knowledge of her need for an accommodation.

The Supreme Court Ruling

The Supreme Court reversed, explaining that "actual knowledge" is not required but, instead, that "an applicant need only show that his need for an accommodation was a motivating factor in the employer's decision." In other words, as the Supreme Court explained, "An employer who acts with the motive of avoiding accommodations may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed."

Impact on Employers

Abercrombie is a good example of how facially neutral employment policies can nonetheless give rise to an employment discrimination claim if employers do not remain vigilant. Indeed, in the context of religious discrimination, the Supreme Court expressly cautioned that, "Title VII requires otherwise-neutral policies to give way to the need for an accommodation." Thus, employers cannot evade Title VII's requirements through ignorance of an applicant's potential need for an accommodation. As the Supreme Court explained, "A request for an accommodation, or the employer's certainty that the [religious] practice exists, may make it easier to infer motive, but it is not a necessary condition of liability."

Employers should not base employment decisions on speculation over whether an applicant's religious beliefs might conflict with an employment policy – whether that policy relates to dress codes, time off, mandatory overtime, or other workplace rules. Instead, the prudent course is to inquire whether an applicant would require an accommodation. An employer can then determine whether such an accommodation can be provided or whether doing so would be an undue hardship to the operation of the employer's business.

The Labor & Employment Practice Group at Lewis Rice assists clients in complying with all aspects of Title VII and state employment discrimination laws. If you would like to discuss the Abercrombie opinion further, or if you would like assistance with your own compliance concerns, please feel free to contact us.

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