Employment-Word-CloudOn June 1, 2015, the U.S. Supreme Court, in an 8-1 decision, ruled in favor of a 17-year-old practicing Muslim, Samantha Elauf, who applied for a job at retailer Abercrombie & Fitch, but was denied employment because the black headscarf she wore in connection with her religion (known as a “hijab”) did not conform to Abercrombie’s “look policy.” Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14–86, 575 U.S. ____ (Jun. 1, 2015).

According to the facts set forth in the Court’s opinion, salespersons at Abercrombie are called “models.” As part of the job interview process, each applicant is scored on how he or she looks. Once hired, the “models” must comply with an Abercrombie “look policy” that dictates how each employee is supposed to dress. Before applying, Elauf, who was aware of Abercrombie’s look policy, asked a friend who knew the store’s assistant manager whether she would be able to wear a hijab while at work. The manager allegedly told Elauf’s friend that it wouldn’t be an issue, so Elauf applied for a “model” position at an Abercrombie in Tulsa, Oklahoma. Notably, during her interview, neither Elauf nor the interviewer brought up Elauf’s religion or her headscarf, which she wore during the interview.

Elauf’s interview allegedly went well, and it appeared to Elauf that she was going to get the job. However, the interviewer sought the advice of her manager because the interviewer was concerned that Elauf’s headscarf conflicted with the store’s “look policy.” When this yielded no answer, the matter was escalated to the store’s district manager. The district manager allegedly informed the store manager that Elauf’s headscarf would violate the “look policy,” as would all other headwear, religious or otherwise. As a result, Elauf was not hired.

The EEOC sued Abercrombie on Elauf’s behalf, claiming that its refusal to hire Elauf violated Title VII. The district court granted the EEOC summary judgment on the issue of liability and held a trial on damages, awarding Elauf $20,000. The Tenth Circuit Court of Appeals reversed and awarded Abercrombie summary judgment on the basis 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/her need for an accommodation.

The Supreme Court concluded that the Tenth Circuit misinterpreted Title VII’s requirements in granting summary judgment. Writing for the majority, Justice Antonin Scalia rejected Abercrombie’s argument that someone like Elauf could not show that she was the victim of discrimination unless she was able to demonstrate that the employer had “actual knowledge” that she was wearing the headscarf for religious reasons and would need the store to accommodate her. Instead, the Court held that Elauf only needed to show that her need for Abercrombie to accommodate her religious beliefs was a “motivating factor” in its decision not to hire her. The Court was also not persuaded by Abercrombie’s alternative argument that it did not discriminate against Elauf because Abercrombie had a “no headwear” policy that applied to everyone, regardless of religion. In rejecting this argument, the Court explained that Title VII does not require the employer to be neutral when it comes to religious practices because religious practices are given “favored treatment.” This means that policies which would otherwise be neutral must “give way to the need for an accommodation” of an applicant’s religious practices. Based upon this analysis, the Court reversed the Tenth Circuit’s entry of summary judgment and remanded the case for further consideration consistent with the High Court’s opinion.

Justice Samuel A. Alito Jr. concurred in the Court’s decision but declined to adopt the majority’s reasoning. Instead, he stated that an employer should not be held liable for taking an adverse action because of an employee’s religious practice unless it knows that the employee engages in the practice for a religious reason. In this case, however, Justice Alito found that Abercrombie knew that Elauf wore the scarf because of her Muslim faith. Justice Clarence Thomas was the lone dissenter, finding that the company’s dress code was a neutral policy that could not be the basis for a claim of religious discrimination.

In the aftermath of this decision, the main risk that may arise for employers stems from the fact that some employers might now be tempted to ask, explicitly, whether a requested accommodation is based on a religious belief. This could prompt unwanted lawsuits because such questions could provoke suspicion of religious discrimination or be seen as an act of discrimination. As a result, this decision presents a situation in which employers might be sued if they ask, but also might be sued if they do not ask. On the bright side, however, employers should be mindful that this decision does not mean that employers will lose future lawsuits if they genuinely do not know about an employee’s religious beliefs, or if they have an inkling but are motivated in their decision by other factors. That part of the law has not changed. Nevertheless, employers must now be on high alert when they know or at least suspect that something is being worn for religious reasons. In such a case, an employer should tread very carefully and consult with legal counsel before moving forward, to minimize risks.