Motive Without Knowledge – EEOC v. Abercrombie and Fitch

Samantha Elauf, a teenager and an observant Muslim, applied to work for retailer Abercrombie & Fitch. When she interviewed for the position she received a “qualified rating.” There was just one problem. Ms. Elauf, in accordance with her religious beliefs, wore a headscarf. Abercrombie has a “Look” policy that prohibits employees from, among other things, wearing any headgear. Abercrombie chose not to hire Elauf because the headscarf violated Abercrombie’s “look” policy.

Elauf filed a charge with the EEOC, claiming that Abercrombie’s failure to hire her was religious discrimination under Title VII of the Civil Rights Act. Title VII’s prohibition against religious discrimination applies to all aspects of a religion’s practice, observance, and belief, “unless an employer demonstrates that he is unable to reasonably accommodate such a belief. The EEOC agreed with Elauf and brought its own lawsuit against Abercrombie.   At the trial court level, the EEOC prevailed on the ground that the failure to hire Elauf was a violation of Title VII’s provisions prohibiting religious discrimination. The 10^th Circuit Court of Appeals reversed, because Elauf did not inform her interviewer that she would request an accommodation to wear the headscarf. As such, Abercrombie could not discriminate against Elauf by failing to make an accommodation, because it had no knowledge that she actually would make such an accommodation for religious reasons.

In an 8-1 decision, the Supreme Court reverses the 10^th Circuit Court of Appeals. Abercrombie’s knowledge of Ms. Elauf’s religion, and need for an accommodation is irrelevant, explains the Court. What matters is that Abercrombie’s decision not to hire Ms. Elauf was motivated by the fact that it thought she would wear a headscarf in violation of its “look” policy.

The Court’s decision explicitly contrasts Title VII with other statutes that require an employer to have knowledge before it must accommodate a practice, such as the Americans with Disabilities Act, which requires an employer to offer accommodations for an employee’s “known” disabilities. There is no knowledge requirement in Title VII, and it was error for the 10^th Circuit to require proof that Abercrombie had actual knowledge of Ms. Elauf’s need for an accommodation.

It should be noted that the Court holds that Abercrombie’s refusal to hire constitutes intentional disparate treatment under Title VII, and not a neutral policy that has a disparate impact on observant Muslims. The distinction is important because certain remedies are not available to plaintiffs who only prove disparate impact claims. The case also demonstrates that an employer may act on an improper motive even if it does not base its decision on animus towards a religion. Assuming Abercrombie had no biases or prejudices against Muslims, its decision is still discrimination, because it is motivated by the desire to avoid providing the accommodation.

Finally, the Court’s decision may breathe some life into the accommodation provisions of Title VII. Courts have generally held that anything more than a de minimus inconvenience to the employer excuses the employer from accommodating an employee’s religious practice. The holding in this case, however, shows that Title VII’s requirement to accommodate religious practice still has some teeth.