In Equal Employment Opportunity Commission (EEOC) v. Abercrombie and Fitch Stores, Inc., the Supreme Court ruled 8-1 that to bring a religious accommodation claim an applicant/employee only has to demonstrate that their need for a religious accommodation was a motivating factor in an employment decision. Writing for the Court, Justice Scalia stated that “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 practices, confirmed or otherwise, a factor in employment decisions.” IPMA-HR joined with other public employer associations in filing an amicus curiae brief arguing that the applicant/employee should have to notify the employer of the need for a religious accommodation.
Abercrombie & Fitch’s “Look Policy” requires sale-floor employees to wear clothing consistent with what Abercrombie sells in it stores and prohibits head wear. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. Her interviewer assumed but did not ask if she is Muslim and wore the headscarf for religious reasons. Ms. Elauf was ultimately not hired because of the headscarf. The EEOC sued Abercrombie alleging it violated Title VII of the Civil Rights Act by failing to accommodate Ms. Elauf’s religious beliefs. The question before the Court is who must ask about the need for a religious accommodation—the employer or the employee/applicant?
The Tenth Circuit held in favor of Abercrombie, finding that an applicant/employee “ordinarily must establish that he or she initially informed the employer that [he or she] adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice,” which Ms. Elauf did not do.
The Court rejected Abercrombie’s argument that an employer has to have actual knowledge of an applicant’s need for a religious accommodation in order for the applicant to show disparate treatment. First, the Court stated that the Title VII “disparate treatment provision forbids an employer from (1) ‘[failing] … to hire’ an applicant (2) ‘because of’ (3) ‘such individual’s … religion’ (which includes his religious practice).” Within the context of Title VII, “because of” is interpreted as “[prohibiting] making a protected characteristic a ‘motivating factor’ in an employment decision.” Second, unlike other antidiscrimination statutes, Title VII has no explicit knowledge requirement. Instead, Title VII “prohibits certain motives, regardless of the state of the actor’s knowledge.” On these grounds, the Court also dismissed the Tenth’s Circuit’s rule, which seeks to add a knowledge requirement to the statute that Congress did not intend. The Court also rejected Abercrombie’s alternative argument that a neutral policy cannot constitute “intentional discrimination” because Title VII gives religious practices favored treatment and therefore precedence over otherwise-neutral employment policies.
Justice Alito, in a concurring opinion, argued that the Court should have ruled on whether the motive requirement could be met without knowledge and that the answer to that question is no. Justice Thomas, the lone dissenter and a former Chairman of the EEOC, argued that the Tenth Circuit decision in favor of Abercrombie was correct because “mere application of a neutral policy cannot constitute 'intentional discrimination.'”