The Supreme Court’s final employment case of the term is a loss for all employers—not just clothing retailers that impose their fashion sense on their employees. As Justice Thomas points out in his dissenting opinion, rather remarkably, it leaves open the possibility that an employer can be liable for intentional discrimination for failing to accommodate a practice it did not know or even suspect was religious.
In EEOC v. Abercrombie & Fitch Stores the Supreme Court held 8-1 that to bring a religious accommodation claim an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision. The State and Local Legal Center (SLLC) filed an amicus brief, which IMLA attorneys wrote, arguing that to bring a failure to accommodate claim the applicant/employee should have to notify the employer of the need for a religious accommodation.
Abercrombie & Fitch’s “Look Policy,” prohibits employees from wearing “caps” because they are too informal for the store’s desired image. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. The assistant store manager who interviewed Elauf told the district manager she believed Elauf wore the headscarf for religious reasons. The district manager decided Elauf should not be hired as headwear worn for any reason violates Abercrombie’s “Look Policy.”
The Equal Employment Opportunity Commission (EEOC) sued Abercrombie alleging it violated Title VII by failing to accommodate Elauf’s religious beliefs. The Tenth Circuit held in favor of Abercrombie, finding that an applicant/employee must inform the employer about the need for a religious accommodation.
The Court concluded that to bring a religious accommodation claim an applicant/employee need not show that the employer had “actual knowledge” of the need for an accommodation. Instead the employee/applicant only must show that his or her need for an accommodation was a motivating factor in the employer’s decision. Title VII prohibits employers from taking an adverse employment action “because of” religion. While “because of” usually means but-for causation, Title VII has a more relaxed standard that prohibits even making religion a motiving factor in an employment decision. Simply put, the Court would not add an “actual knowledge” requirement to Title VII.
According to the Court, while a knowledge requirement could not be added to the motive requirement, arguably the motive requirement cannot be met unless the employer at least suspects the practice in question is religious. Here Abercrombie at least suspected Elauf wore a head scarf for religious reasons so the Court did not decide whether the motive requirement could be met without knowledge. Justice Alito, in a concurring opinion which reads much like a dissent, stated that the Court should have decided this question–in the negative.
Amanda Kellar and Chuck Thompson, International Municipal Lawyers Association, wrote the SLLC’s brief which was joined by the National Conference of State Legislatures, the National League of Cities, the United States Conference of Mayors, the National Association of Counties, the International City/County Management Association, the International Municipal Lawyers Association, the International Public Management Association for Human Resources, the National Public Employer Labor Relations Association, and the National School Boards Association.