U.S. Supreme Court Emphasizes Motives Over Knowledge in Abercrombie Case

The U.S. Supreme Court handed down an 8-to-1 decision this morning in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. (U.S. 2015), holding that to prevail in a disparate-treatment claim, a job applicant “need only show that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.”

Samantha Elauf, a practicing Muslim who wore a headscarf in religious observance, applied for a job with Abercrombie. The store’s assistant manager rated her qualified for hire, but was concerned that her headscarf would conflict with the store’s “Look Policy,” which prohibited “caps.” The assistant manager sought guidance from the district manager, Randall Johnson, stating she thought Elauf wore the headscarf because of her faith. Johnson told her “that Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise,” and directed her not to hire Elauf.

The EEOC sued on Elauf’s behalf, winning in district court. However, the Tenth Circuit Court of Appeals reversed, granting summary judgment to Abercrombie, stating that “ordinarily, an employer cannot be held liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation.”

Delivering the Court’s opinion, Justice Antonin Scalia disagreed with Abercrombie’s contention that an applicant cannot show disparate treatment without first showing that an employer has ‘actual knowledge’ of the applicant’s need for an accommodation. “Instead,” Justice Scalia wrote, “an applicant need only show that his need for an accommodation was a motivating factor in the employment decision.”

Justice Scalia continued: “[T]he intentional discrimination provisions prohibit certain motives, regardless of the state of the actor’s knowledge … 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.”

Concurring in the judgment, Justice Samuel Alito wrote separately, stating, “I would hold that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.

“[S]uppose the interviewer in this case had never seen Elauf before. Suppose that the interviewer thought Elauf was wearing the scarf for a secular reason. Suppose that nothing else about Elauf made the interviewer even suspect that she was a Muslim or that she was wearing the scarf for a religious reason. If [Title VII] does not impose a knowledge requirement, Abercrombie would still be liable.”

Concurring in part and dissenting in part, Justice Clarence Thomas observed that by refusing to create an exception to its look policy for Elauf, it remained neutral regarding religious practices. “[T]hat is a classic case of an alleged disparate impact,” not disparate treatment, Justice Thomas wrote. “Because I cannot classify Abercrombie’s conduct as ‘intentional discrimination,’ I would affirm” the Tenth Circuit’s summary judgment in favor of Abercrombie.

While it is too soon to gauge the effect of today’s decision on employers, a reduction in charges of discrimination received is not a likely outcome. Members are urged to contact MSEC attorneys with questions and concerns.