LACK OF KNOWLEDGE OF NEED FOR EMPLOYER TO PROVIDE RELIGIOUS ACCOMMODATION WILL NOT BAR A SUIT FOR DISCRIMINATORY FAILURE TO HIRE

The U.S.. Supreme Court, on June 1, 2015, decided that an employer can be liable for religious discrimination, under Title VII, when applying a seemingly neutral employee policy, applicable to all employees, against a member of a religion, who has not asked for any accommodation, but the employer suspects that one might be asked for, and therefore directs that the job applicant not be hired. This was in the case of EEOC v. Abercrombie & Fitch Stores, Inc. This case involved a Muslim woman, Samantha Elauf, wearing a head scarf when interviewed for employment, who never mentioned that she was wearing the scarf for religious purposes, or that she needed any accommodation from the employer to be allowed to wear the scarf at work. The Company had a “Look Policy” in place, applicable to all employees, governing its employees’ manner of dressing while at work.

The policy was applied uniformly to all employees and prohibited the wearing of “caps”, as being too informal for Abercrombie’s desired image. The assistant manager, following an interview, gave Ms. Elauf a rating that qualified her to be hired, however, she had concerns about whether or not the wearing of the head scarf was prohibited by the “Look Policy”. Not knowing the answer, the District Manager was contacted and was told that the assistant manager thought that Ms. Elauf wore her scarf because of her faith. Ms. Elauf had not mentioned that she was wearing the scarf for religious purposes, and had not asked for any accommodation to permit her to wear the scarf, despite the mandatory dress code. Nonetheless, the District Manger directed the assistant manager to not hire Ms. Elauf, as the wearing of the head scarf would violate the “Look Policy”, as would be the case with all other headwear, religious or otherwise.

A charge of religious discrimination was filed, and the EEOC found probable cause that Title VII had been violated, as the reason that Ms. Elauf was not hired was due to religious discrimination. An action was filed in the District Court, where a jury found in favor of Ms. Elauf and awarded her $20,000 in damages. Abercrombie appealed the verdict to the 10th Circuit Court of Appeals, which reversed the judgment of the District Court, holding that since there was no evidence that Abercrombie had actual knowledge of a need for, or request for a religious accommodation in order to wear the head scarf, it could not be liable for religious discrimination. The U.S. Supreme Court reversed the 10th Circuit and held that “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 an accommodation would be needed”.

An employee’s claims for discrimination, under Title VII, may be based on two theories. The first is that of “disparate treatment” otherwise referred to as “intentional discrimination”. The second is “disparate impact”, which occurs when the policies of an employer classify applicants for employment, or employees, in a way which adversely affects the status of an employee, or applicant, because of their race, color, religion, sex, or national origin. This case was filed under the disparate treatment theory of intentional discrimination. Abercrombie argued that there could not be a finding of intentional discrimination without first showing that the employer had “actual knowledge” of Ms. Elauf’s need for an accommodation to continue to wear her scarf. The Supreme Court rejected that argument, holding that the only thing that needed to be shown was that the applicant’s need for an accommodation was a motivating factor in the employer’s decision.  The Court held that it is not actual knowledge of the need for an accommodation, but rather, the motive in avoiding the accommodation, whether or not there is knowledge that an actual accommodation will be needed, that violates Title VII.

The bottom line of the Court’s decision is that an employer may not use an employee’s or applicant’s religious practice as a factor in making any employment decision about that person. As an example of a situation where an employer merely has a suspicion that a religious accommodation might be requested, the Court stated as follows:

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.

Abercrombie also argued that since the “Look Policy” does not treat religious practices any differently from secular practices regarding wearing caps, that because it is a neutral policy, then it cannot constitute “intentional discrimination”. The Supreme Court rejected that concept when applied to religious practices, and held that religious practices be given 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”.

The Supreme Court decided this case by virtue of the suspicion that an accommodation might be needed. It did not deal with the situation where the employer neither knew nor suspected that an accommodation might be needed for religious purposes. The answer to that will have to await further decision by lower courts and, perhaps ultimately by the Supreme Court.

The United States District Court for the District of Colorado on September 29, 2015 dealt with the question of whether or not an employer could be held liable for discrimination where there was no direct proof that the employer knew or suspected that there was a need for a religious accommodation.  Under those circumstances, the Court held that it would be up to a jury to determine if there was enough evidence that the employer should have known of a need for accommodation, and whether the reason that the employees were not hired was that the need for a religious accommodation, was a motivating factor in that decision. This was in the case of EEOC v. JetStream Ground Servs., 2015 U.S. Dist. LEXIS 131386 (D. Colo. Sept. 29, 2015).

This case involved the layoff of Amina Oba, a Muslim female from Ethiopia, whose religious beliefs require her to cover her head and also to wear modest clothing that is not revealing the shape of her body. Although there was no claim that she ever asked for a religious accommodation, the facts showed that Ms. Oba regularly and openly wore her hijab and skirt at work, donning and doffing them for work breaks, and that she was laid off along with another woman who also wore a hijab.Although she was not initially selected for a layoff, the layoff list was changed and she was included. There was no request for an accommodation nor any discussion with her employer about her religious beliefs.  The Court held that this was enough evidence to allow a jury to decide if her layoff was a motivating factor in the layoff decision. The District Court stated that the U.S. Supreme Court’s decision in Abercrombie made it clear that an employee may establish a prima facie case of failure to accommodate by showing that (1) she had a bona fide religious belief that conflicted with an employment requirement; and (2) her need for an accommodation was a motivating factor in the employer’s decision to take an adverse employment action against her.

There are many factual analyses that are needed to determine whether or not particular actions amount to religious (or any other type of)  discrimination. Whether bringing or defending a claim for religious discrimination,  it is recommended that one obtain the advice of an attorney with expertise in this area.

Nathan Davidovich is available for consultation on discrimination issues by calling 303-825-5529, or contacting him by email at nathandavidovich@talk-law.com.

By: Nathan Davidovich
Copyright November 2015
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This article is intended for information purposes only. It is not intended as professional advice, and should not be considered as such.