The long-awaited ruling in EEOC v. Abercrombie & Fitch found an 8-1 decision against the youth clothing store, reversing the Tenth Court’s decision. But many people were unsurprised by the verdict.

Photo Credit: The Caze cc
Photo Credit: The Caze cc

For many, the decision was cut-and-dry: Though Samantha Elauf did not discuss her headscarf in her 2008 job interview with Abercrombie & Fitch, but the manager who interviewed her inferred Elauf wore it for religious reasons, and discussed that the headscarf would conflict the company’s Look Policy with the District Manager before rejecting Elauf for the position.

And SCOTUS says that’s the problem. If an employer knows or just assumes that an accommodation will be necessary, and subsequently uses that as a motivating factor to not hire the applicant, then the Supreme Court believes it is a violation of Title VII. As Christina Stoneburner writes for the Employment Discrimination Report, this is arguably a predictable reason of Title VII:

In its analysis the Supreme Court noted that the disparate treatment provision of Title VII forbids employers from failing to hire and applicant because of religion. Thus, the provision prevents religion from being a motivating factor in an employer’s decision not to hire an applicant.

When viewed in this light, today’s decision is not so different from cases interpreting the disability portions of Title VII.  For example, if an applicant who came into an interview for a position involving physical labor had a limp, the employer assumed because of the limp that the employee would need accommodations, and the employer did not want to create light duty positions so it rejected the applicant, it is not hard to see how this would be disability discrimination due to the assumption alone.

In this case, Abercrombie assumed (correctly) that Ms. Elauf wore the head scarf for religious reasons and as such would need an accommodation from its Look Policy.  Since Abercrombie’s sole reason for not hiring her was that it did not want to create an exception to the Look Policy, Ms. Elauf could show that her need for an accommodation was a motivating factor in the decision not to hire her even though she had never specifically asked for an accommodation.

The Court states that Elauf could show that her need for an accommodation was a motivating factor, because this case still isn’t over. Rather, it remanded the case to the Tenth Circuit to make the final determination under SCOTUS’s Elauf-friendly interpretation of the law.

Additionally, the Supremes aimed to keep the decision as narrow as they could, admitting that the motive requirements aren’t met unless the employer at least suspects that the practice in question is due to a religious practice. Unfortunately, as Beth V. West writes on The Labor and Employment Law Blog that leaves the decision a bit unclear on when an employer is supposed to infer an accommodation would be necessary:

In a footnote, the Court states that “[w]hile a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that [it] cannot discriminate ‘because of’ a ‘religious practice’ unless he knows or suspects it to be a religious practice.”  However, as the Court explained, that issue was not presented in the case, since AF knew (or at least suspected) that the scarf was worn for religious reasons. The Court said that since the question was not discussed or briefed by either side, it is inappropriate to resolve it.

There are some who believe that the highest court in the land has now placed employers in an awkward “damned if you do, damned if you don’t” situation, where either asking if the applicant will require religious accommodation in a job interview or not will land the employer in hot water. Norlynn Price, of Global Workplace Insider, worries that EEOC vs. Abercrombie & Fitch would suggest to employers that they should leap to conclusions in order to avoid a legal headache:

The Abercrombie decision is a significant victory for religious advocacy groups who have long argued that individual employees should not be required to expressly request accommodation or to “outwardly display their religion through dress and grooming practices.” For employers and prospective employers, however, the decision further complicates an already challenging landscape of what constitutes “reasonable accommodation” in a particular situation. Indeed, Abercrombie suggests that an employer now must anticipate or make an assumption about an employee’s need for a particular accommodation, perhaps even based upon superficial or stereotypical dress, grooming or behavior and without actual notice or knowledge of the need for such an accommodation. In order to avoid potential Title VII liability for failure to offer “reasonable accommodation” to an employee or prospect based on perceived religious beliefs or practices, it may now be incumbent on employers to tread, ever so gingerly, on long-considered “taboo” conversation topics to ascertain whether accommodation is warranted.

But Daniel Schwartz of Connecticut Employment Law Blog thinks there’s a different lesson here for employers:

For employers, this decision should not come as much of a surprise.  And for employers, it means remaining aware that accommodating a person’s religious belief doesn’t necessarily require your actual knowledge.  Be understanding in your approach to these issues.

The EEOC’s statement earlier this year on accommodating religious beliefs still holds some sway too.

Some will argue (as they already have this morning) that the decision puts employers in a no-win situation.  I think that overstates it.  Employers should use common sense and discuss the topic if there appears to be an issue with an employer’s existing policy.

Abercrombie has had past troubles with headscarves and their Look Policy, but employers should still be careful when constructing a policy in the wake of EEOC vs. Abercrombie & Fitch. Whether the lower court will now decide that Elauf shouldn’t have to bear the brunt of raising the possibility of religious accommodation remains to be seen, but it’s clear that the courts won’t take religious accommodation—and lack there of—lightly.