On Your Marks, Get Ready…Stereotype!

On Monday June 1, 2015, in EEOC v. Abercrombie & Fitch Stores [pdf] the United States Supreme Court, addressed the issue of whether an employer can be liable for refusing to hire an applicant or discharging an employee on a “religious observance and practice” if the employer doesn’t have actual knowledge that a religious accommodation is required.

In this case, the applicant Samantha Elauf religion requires her to wear a hijab (aka headscarf), but Abercrombie’s “look policy” was in conflict with this attire.  The “look policy” specifically prohibited wearing caps and black clothing.  When Elauf wasn’t hired an Abercrombie employee indicated that the rejection was due to the hijab.  As a result, Elauf went to the EEOC which filed suit on her behalf.

In delivering the yesterday’s opinion on behalf of the Court, Justice Scalia described the case as a “really easy” one.  The Court’s Opinion discussed the distinction between motive and knowledge in explaining its holding. Specifically, the Court held:

• “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.…
• 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 Court ruled that Elauf only has to show that her need for Abercrombie to accommodate her religious beliefs was a “motivating factor” in its decision not to hire her.  Putting it lightly, whether or not an employer has actual knowledge of a need for an accommodation is non-factor.  Employers now have to hypothesize, based on appearance and stereotype, if there is a need for an accommodation.

What are employers to do?  During oral arguments back in February several of the Justices said there is an easy way to avoid stereotyping.  Tell job applicants what the rules are and then ask them, “You have a problem with that?”

While delivering the message in that manner may seem a tad curt, the message is a good one.  If an employer believes that an applicant’s or employee’s religion will interfere with a specific work rule or job requirement, the Employer should review rule or job requirement with the individual and inquire if an accommodation is needed.  If the individual says “yes,” begin an interactive process and discuss if there are any possible accommodations that will meet the needs of the individual and employer.

For more information on the religious accommodations or other human resource needs please contact Clemans Nelson at (800)-282-0787 or at one of the following regional offices: