The High Court rendered an opinion in EEOC v. Abercrombie & Fitch Stores, Inc. The bottom line is unless the employer can show it is unduly burdensome to accommodate a religious practice, it must accommodate the person even if it has a mandatory dress code or other neutrally-applied policy. The employer is required to do so if the person asks for the accommodation or even if the employer suspects the person may need one.
Abercrombie did not hire a Muslim woman because her headscarf violated their “Look Policy.” The policy, which is described as “East Coast collegiate or preppy style,” prohibits the wearing of “caps” (an undefined term in the policy) as too informal for their image. The woman applied for a job at one of the stores. The assistant manager of the store interviewed and conditionally approved her for the job. Yet, the headscarf she wore to the interview indicated to the manager that hiring her would be a violation of their “Look Policy.” Although the woman never asked for a religious accommodation, the assistant manager assumed that she would need one if hired and deferred to the district manager. The district manager thought the scarf “would violate the Look Policy, as would all other headwear, religious or otherwise,” and directed the assistant manager not to hire the woman.
The EEOC sued on the woman’s behalf claiming Abercrombie’s action violated Title VII and won a $20,000 judgment. The Tenth Circuit reversed and awarded Abercrombie summary judgment, ruling an “employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation.”
Title VII makes it illegal for an employer “‘to fail or refuse to hire . . . any individual . . . because of such individual’s . . . religion.’ §2000e–2(a)(1).” Religion “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate [] an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
There are two ways to bring an action under Title VII of the Civil Rights Act of 1964: one is for a disparate- treatment (or intentional-discrimination), and the other, disparate-impact of otherwise facially neutral policies. The “intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.” Disparate-treatment claims based on a failure to accommodate a religious practice is plain: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
The Court ruled: “An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an ‘aspec[t] of religious . . . practice,’ it is no response that the subsequent ‘fail[ure] . . . to hire’ was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”
Under the ruling, a prospective applicant is not always required, as the Tenth Circuit held, to request an accommodation from an employer. Employers that are aware or believe an accommodation is needed and are motivated to fire or not to hire someone based on that accommodation also violate the statute. As Justice Alito stated in his concurrence, however, if it is unduly burdensome to require the accommodation, then there is no violation.
But Justice Thomas in his dissent was concerned about a broad reading of the words “because of such religious practice” in that it could sweep up an employer’s policy that applies indiscriminately to everyone, yet happens to be at odds with an employee’s religious practice. He gives the following example:
Suppose an employer with a neutral grooming policy forbidding facial hair refuses to hire a Muslim who wears a beard for religious reasons. Assuming the employer applied the neutral grooming policy to all applicants, the motivation behind the refusal to hire the Muslim appli- cant would not be the religious nature of his beard, but its existence. Under the first reading, then, the Muslim applicant would lack an intentional-discrimination claim, as he was not refused employment ‘because of’ the religious nature of his practice. But under the second reading, he would have such a claim, as he was refused employment ‘because of’ a practice that happens to be religious in nature.
Justice Thomas reasoned that under a broad reading employers with no discriminatory motive would be punished because they had no knowledge of every aspect of an employee’s religious practice. It would undermine the intent element of disparate treatment and make the employer strictly liable for its conduct. Citing precedent, Justice Thomas explained “discriminatory purpose” as “‘the purpose necessary for a claim of intentional discrimination” that “demands ‘more than . . . awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.’”
He recognized refusal to accommodate can be discriminatory where an employer does not make a policy exception for someone for religious purposes involving a store policy that is applied to everyone, when at the same time makes the same allowance for someone of another religion or some secular practice. Yet, he explained,”merely refusing to create an exception to a neutral policy for a religious practice cannot be described as treating a particular applicant ‘less favorably than others.’” Under the majority’s view “mere refusal to accommodate a religious practice under a neutral policy could constitute intentional discrimination,” unless the employer produces evidence that the accommodation is unduly burdensome and persuades the court that it is so.