KMK Law Management Rights Blog

When I think of Abercrombie & Fitch, which is an infrequent occurrence, I think of soft core porn catalogues and over-priced t-shirts; now, I can add religious discrimination to the list.  The Supreme Court ruled this week against Abercrombie & Fitch for refusing to hire a young Muslim because she wore a hijab, which violated the store’s “look policy” for salespersons.  Interestingly, the applicant had never mentioned her Muslim faith or asked for an exemption from the company dress policy.  The Tenth Circuit, which ruled in favor of Abercrombie, took the position that Title VII required employees to explicitly tell employers about their religious practices and indicate the conflict with employer policies.  Similarly, Abercrombie argued to the Supreme Court that without “actual knowledge” of a conflict between an applicant or employee's religion and an employer's requirements, the employer could not be held liable for failing to provide an accommodation under Title VII.   The Supreme Court majority, consistent with recent decisions protective of religious freedom, stated:

[Title VII’s] intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. 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, an 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. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

The lone dissenter, Justice Thomas, disagreed:

I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.” Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf’s religious practice of wearing a headscarf.  In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a classic case of an alleged disparate impact. It is not what we have previously understood to be a case of disparate treatment because Elauf received the same treatment from Abercrombie as any other applicant who appeared unable to comply with the company’s Look Policy. Because I cannot classify Abercrombie’s conduct as “intentional discrimination,” I would affirm.

While Justice Thomas’ view makes a lot of sense given the fact that the policy in question was neutral, the Supreme Court is trending in the direction of providing broader protection to religious practices.  Employers with policies governing employee appearance should review them in light of this decision; the conservative approach would be to subject them to a disparate impact analysis.  Moreover, hiring managers need to be trained to spot potential issues and avoid making assumptions about potential accommodations for applicants.