The Warshawsky Law Firm Blog

Wednesday, June 3, 2015

U.S. Supreme Court Clarifies Broad Scope Of Religious Protection Under Title VII

On June 1, 2015, the U.S. Supreme Court issued its eagerly anticipated decision in the case of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., which presented the question whether an applicant for employment is required to inform the employer of her need for a religious accommodation in order to be protected by Title VII of the Civil Rights Act of 1964.  The Court (in an 8-1 decision written by Justice Scalia) said no, holding that "[a]n employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."  This important decision clarifies the broad scope of religious protection under Title VII.

Title VII is a federal statute that prohibits discrimination in employment based on race, color, religion, sex, or national origin.  Title VII applies to employers throughout the country with at least 15 employees, including federal, state, and local government agencies.  Under Title VII, it is an “unlawful employment practice” for a covered employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”  42 U.S.C. § 2000e-2(a).

In the Abercrombie case, the plaintiff was a practicing Muslim who applied for a position in an Abercrombie store.  She was wearing a traditional headscarf during her interview.  She was interviewed by an assistant store manager, who considered the plaintiff qualified to be hired, but was concerned that the headscarf would conflict with the company's "Look Policy," which strictly prohibited employees from wearing "caps" at work.  The assistant store manager raised this concern to the store manager, who provided no guidance, then she spoke with the district manager, who told her that the headscarf would violate the Look Policy.  The assistant store manager mentioned that she believed the plaintiff wore the headscarf because of her faith, but the district manager said that the Look Policy applied to all headwear, religious or otherwise, and he decided that the plaintiff could not be hired.

The U.S. Equal Employment Opportunity Commission (EEOC) filed the lawsuit on behalf of the Muslim applicant, claiming that the company's Look Policy violated the plaintiff's rights under Title VII.  The district court ruled in favor of the plaintiff, but the Tenth Circuit reversed on the grounds that the Look Policy was a "neutral" job requirement.  The EEOC appealed to the U.S. Supreme Court, which ruled in favor of the plaintiff.

The Supreme Court explained that Title VII by its terms protects "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate" the employee's religious observance or practice "without undue hardship on the conduct of the employer's business."  See 42 U.S.C. § 2000e(j).  In other words, Title VII imposes an affirmative duty on employers to reasonably accommodate an employee's religious practices, unless doing so would impose an "undue hardship" on the business.  Contrary to the company's position, the Supreme Court emphasized that "Title VII does not demand mere neutrality with regard to religious practices - that they be treated no worse than other practices.  Rather, it gives them favored treatment, affirmatively obligating employers not 'to fail or refuse to hire or discharge any individual . . . because of such individual's' 'religious observance and practice'."  Consequently, "Title VII requires otherwise-neutral policies to give way to the need for an accommodation."

Based on these principles, the outcome in the Abercrombie case was clear:  The company could not refuse to hire the plaintiff based on its Look Policy merely because she wore a Muslim headscarf.  The Court did not decide if accommodating the plaintiff's headscarf by making an exception to the company's Look Policy would impose an "undue burden" on Abercrombie; that issue will be considered by the lower courts on remand (unless the case is settled). 

Importantly, the Court held that the employer does not have to "know" as a fact that the employee needs a religious accommodation for the protections of Title VII to apply.  Even a mere suspicion or belief is enough, because the statute focuses on the employer's motive not its knowledge.  As the Court explained:

"Instead, the 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."

Title VII's "disparate treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice.  A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability."

In sum, under Title VII an employer may not base employment decisions on an applicant's or employee's known or suspected religion, including beliefs, observances, and practices, and must accommodate an employee's religion, unless doing so would impose an undue burden on the business.

For additional commentary on the Abercrombie decision, see here (SCOTUS blog) and here (Politico).

If you or someone you know has been the victim of religious discrimination in the workplace, please contact The Warshawsky Law Firm today. 

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