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SCOTUS Decides in Religious Discrimination Case v. Abercrombie & Fitch

Posted by Eric Kingsley | Jun 23, 2015 | 0 Comments

Religious Discrimination Can Be Established Even in Cases Where the Employer Does Not Ask Whether the Applicant Requires Religious Accommodation

Religious discrimination

On June 1, 2015, the United States Supreme Court held that a job applicant can establish religious discrimination under Title VII of the Civil Rights Act of 1964 without proof that the employer had “actual knowledge” of the applicant's need for an accommodation. Writing on behalf of eight of the Court's nine Justices, Justice Scalia went on to explain that the applicant “need only show that his or her need for an accommodation was a motivating factor in the employer's decision”…“an employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions.”


The Equal Employment Opportunity Commission (EEOC) sued Abercrombie & Fitch, a clothing retailer, on behalf of Samantha Elauf, a Muslim woman who had worn a headscarf to her job interview. Although the interviewer gave Elauf a rating that qualified her to be hired, she was concerned that Elauf's headscarf would conflict with the chain's “Look Policy,” which, among other things, prohibits “caps” as too informal for Abercrombie's desired image. Although the interviewer believed that Elauf wore the headscarf for religious reasons, she never asked Elauf about it. Following the interview, the interviewer asked her district manager whether the headscarf would be a forbidden “cap,” expressing her belief that Elauf wore it “because of her faith.” The district manager said that all headwear violated the Look Policy, religious or otherwise. As a result, Elauf was not hired.

  • The district court granted the EEOC summary judgment on the issue of whether Abercrombie had discriminated against Elauf because of her religion, held a trial on damages, and awarded her $20,000.
  • The 10th Circuit Court of Appeals reversed and awarded Abercrombie summary judgment by holding, as a matter of law, that employers cannot intentionally discriminate under Title VII based on a failure to provide reasonable accommodation unless they have “actual knowledge” of an applicant or employee's need for accommodation. Because Abercrombie lacked actual knowledge of Elauf's need for a religious accommodation, the 10th Circuit held that it had not violated the statute.

Four Key Points from The Court's Decision

  1. The Supreme Court Rejects Any “Actual Knowledge” Requirement – In reversing the 10th Circuit, the Supreme Court first held that Title VII's prohibition against discrimination because of religion or some other protected characteristic requires plaintiffs to show only that the characteristic was “a motivating factor” in the employer's actions, not that the employer had actual knowledge of the characteristic.
  2. The Court left unclear…exactly what sort of knowledge, or even suspicion, an employer must have in order to trigger its obligation to explore the possible need for religious accommodation with an applicant or employee. While the Court said it was “arguable” that a plaintiff such as Elauf had to show that “the employer at least suspects that the practice in question is a religious practice,” it held that issue was “not presented in this case,” giving employers little practical guidance as to what they should do to avoid liability.
  3. The Court also rejected Abercrombie's argument that a claim based on failure to accommodate an applicant's religious practice does not have to be brought as a disparate impact claim. It reasoned that Congress had not limited the meaning of “religion” in Title VII to religious belief, but instead defined the term broadly to “include all aspects of religious observance and practice, as well as belief.”
  4. The Court rejected Abercrombie's argument that its “Look Policy” was lawful because its prohibition on caps does not single out religious headwear. The Court held that Title VII requires more than neutrality toward religious practices; “rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of an individual's' religious observance and practice”.

Experienced California Employment Lawyers

The Court's Decision leaves many questions unanswered for both employers and job applicants.  Clearly, questions about an applicant's religion may give rise to a discrimination claim so employers may be safer in broaching the subject only when they know or have reason to suspect that the employee's practice is religious.  Applicants should become fully aware of all essential job duties and other workplace policies – especially when it comes to dress and work hours – to determine if any such requirements will cause problems.

Should you have questions how the Court's holding in Abercrombie fares in comparison to the EEOC's general guidance regarding applicant questions about religious affiliations or beliefs, don't hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Call and speak to a California lawyer toll-free at (888) 500-8469 or click here to contact us via email.

About the Author

Eric Kingsley

In practice since 1996, attorney and firm co-founder Eric B. Kingsley has litigated complex cases and authored numerous appellate briefs in both state and federal court on behalf of the California law firm of Kingsley & Kingsley, including over 150 class actions. Mr. Kingsley concentrates his pra...


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