On June 1, 2015, the U.S. Supreme Court ruled in favor of a Tulsa woman and the Equal Employment Opportunity Commission (EEOC), and against retailer Abercrombie & Fitch stores for religious discrimination.
The Muslim woman applied to work at Abercrombie & Fitch in Tulsa's Woodland Hills Mall. During the interview, she wore a headscarf (or hijab). The location’s assistant manager noted the applicant was qualified for hire. However, the woman was not hired because she did not comply with Abercrombie & Fitch’s “look policy.” This policy prohibited employees from wearing caps. When asked, store representatives admitted they believed she wore the hijab for religious reasons. Despite this, Abercrombie & Fitch claimed it did not know for certain the woman was wearing the hijab due to religious beliefs. It noted the applicant did not expressly ask for a religious accommodation to its policy.
The woman obtained help from the EEOC and a disparate treatment claim was filed. The EEOC prevailed in district court, but Abercrombie & Fitch appealed to the Tenth Circuit Court of Appeals. The Tenth Circuit granted Abercrombie & Fitch’s motion for summary judgment which effectively dismissed the claim because Abercrombie & Fitch did not have actual knowledge of a request for religious accommodation (as in she did not expressly ask for an accommodation) to their dress code policy. The Supreme Court disagreed and reversed the decision in favor of the Muslim woman.
The applicable law in this arena is found in Title VII of the Civil Rights Act. Title VII is broken down into two main claims: disparate treatment and disparate impact. Disparate treatment covers intentional acts. In a disparate treatment claim, a job applicant is only required to show the need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of need.
Title VII’s disparate treatment provision required the Muslim woman to demonstrate that Abercrombie & Fitch failed to hire her because of her religious practices. The law does not contain a knowledge requirement for employers, but it does contain a motive requirement. An express request to the employer for an accommodation makes it easier to infer that the religious practice exists, but this is not required to incur liability. In short, an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor or motive behind an employment decision. Also, employers should not reject applicants in an effort to avoid a religious accommodation as this will not avoid liability. Conversely, an employer who has actual knowledge of the need for an accommodation will not violate Title VII if the employer does not hire the applicant and the motive is not linked to avoiding an accommodation.
If you have any questions about accommodations, disparate impact or disparate treatment, please contact Ruth Addison or any other member of the Crowe & Dunlevy Labor & Employment practice group.