Supreme Court Expands Interpretation of Disparate Treatment Claims

06/02/2015

On June 1, the United States Supreme Court reversed and remanded Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.1 to the Tenth Circuit Court of Appeals and held that in order to prove a disparate-treatment (or “intentional discrimination”) claim, an applicant need only show that his need for a religious accommodation was a motivating factor in an employer’s decision not to hire him. In so holding, the Court rejected the notion that an employer must have “actual knowledge” of an applicant’s need for a religious accommodation.

The Equal Employment Opportunity Commission (“EEOC”) sued Abercrombie & Fitch Stores, Inc. (“Abercrombie”) under Title VII on behalf of Samantha Elauf, a practicing Muslim-applicant who wore a headscarf based on her religious beliefs. Elauf applied for a position with Abercrombie and the store’s assistant manager determined that she was qualified. Based on a belief that Elauf’s headscarf was indicative of a religious practice, the assistant manager sought guidance on whether the headwear would violate Abercrombie’s “Look Policy,” which prohibited all headwear. After determining that any headwear, whether religious or secular, would violate the policy, Elauf was denied employment. The district court granted the EEOC summary judgment on the liability issue of its claim, and the Tenth Circuit reversed holding that an employer cannot be liable for failing to accommodate a religious practice under Title VII unless it actually knows that an employee or applicant needs an accommodation; the applicant, according the Tenth Circuit, must inform an employer that his religious practices conflict with a policy, and that he needs an accommodation.

In reversing the Tenth Circuit, the Court noted that Title VII does not require knowledge of an accommodation need; rather motive is the appropriate standard for an intentional-discrimination claim. As explained by the Court:

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 . . . [a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

The majority’s opinion is notable for several reasons. First, as noted by Justice Thomas in his opinion concurring in part and dissenting in part, the majority’s holding complicates the traditional notion of an intentional-discrimination claim under Title VII. Historically, federal employment-discrimination law interpreted intentional discrimination to entail treating an employee differently because of a protected trait, and disparate-impact claims to involve practices that were facially neutral but had a more negative effect on one group over another. Finding that Abercrombie’s refusal to accommodate Elauf was intentional discrimination, recognizes that, religious-discrimination claims differ from other Title VII claims because “religion” is defined to include an accommodation requirement. Therefore, according to the Court, a disparate-impact claim can survive if an employer’s decision is motivated by a failure to accommodate a religious belief or practice.

Further, the majority’s decision strongly suggests that, in the absence of actual knowledge, the employer must at a minimum have a suspicion that an applicant’s practice was motivated by a religious belief. Practically, it would seem almost impossible for an employee to prove that an employer was motivated by an applicant’s need for a religious accommodation without some evidence of employer knowledge or suspicion of such need. For that reason, the decision reinforces the importance of training management to avoid stereotyping. Indeed, the case result would likely have been quite different had the interviewing manager not - correctly - assumed that Elauf wore a headscarf because of her religious faith. Similarly, hiring managers should be trained on what to do if there is any indication that a religious accommodation may be necessary, with the best option to be involvement of the company’s human resources department.

In light of this case, employers would also be well advised to review their policies with an eye towards policies whose applications could have a discriminatory impact. The EEOC is focused on policies or practices that emphasize applicant image – what Abercrombie called its “Look Policy” – because these types of policies may lead to stereotyping and exclusion of applicants based on protected characteristics. Employers should analyze whether these policies are necessary and, if they are, adopt steps to ensure that the policies are not discriminatorily applied. Employers should also provide a process for seeking exceptions or accommodations for religious practices as well as disabilities.

The practical effect of the Abercrombie case is likely limited. The decision does, however, provide employers with a reason to review and, if necessary update, their policies, practices and training with respect to religious accommodations.

For more information, please contact one of the Haynes and Boone attorneys below.

Laura E. O’Donnell
210.978.7421
laura.odonnell@haynesboone.com

Dean J. Schaner
713.547.2044
dean.schaner@haynesboone.com

Adam H. Sencenbaugh
512.867.8489
adam.sencenbaugh@haynesboone.com

LaToya J. Alexander
214.651.5068
latoya.alexander@haynesboone.com

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1 No. 14-86, slip op. (U.S. June 1, 2015).

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