Abercrombie & Fitch stores ordered to take a second look at its "Look" Policy
Posted on 06/04/2015 at 12:52 PM by Bryan O'Neill
On June 1, 2015, the United States Supreme Court decided Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. At issue in the case was whether an employer could refuse to hire an applicant to avoid accommodating a religious practice's conflict with the company 'Look Policy,' if the applicant had not specifically asked for an accommodation. The 8-1 ruling authored by Justice Scalia found that an applicant only has to show that his or her need for a religious accommodation was a motivating factor in an employer's adverse employment decision, not that the employer had knowledge of his or her need for an accommodation.
Job applicant Samantha Elauf, a practicing Muslim, wore a headscarf when she was interviewed by an assistant manager at an Abercrombie & Fitch Store, and was given a rating that qualified her to be hired. At no point during her interview did she identify herself as a Muslim, or mention that the headscarf she was wearing was religious in nature. Thus she did not ever request an accommodation to wear her headscarf while at work. The assistant manager, however, had concerns that she would want to do so and that her headscarf could conflict with Abercrombie's Look Policy, which governs employee dress. As part of the policy, employees were prohibited from wearing 'caps,' as those were seen as too informal. Upon inquiry, an Abercrombie & Fitch Stores district manager told the assistant manager that Elauf's headscarf would violate the Look Policy, and directed that Elauf not be hired. The EEOC, on behalf of Elauf, sued Abercrombie, claiming that its refusal to hire her violated Title VII's prohibition against religious discrimination. The district court found in favor of the EEOC, and awarded damages in the amount of $20,000. The Tenth Circuit Court of Appeals reversed, finding that an employer cannot be liable for failing to accommodate a religious practice until the applicant or employee provided the employer with actual notice of his or her need for an accommodation.
Supreme Court's Reasoning
In reversing the Tenth Circuit's decision, the Supreme Court drew a distinction between the language of Title VII, which focuses on an employer's motives (i.e., that the action be taken 'because of' the protected characteristic), and that of other antidiscrimination statutes which explicitly incorporate an employer knowledge component. The Americans with Disabilities Act, for instance, defines discrimination to include an employer's failure to make 'reasonable accommodations to the known physical or mental limitations of an applicant.' The Supreme Court construed Title VII's silence on an employer's knowledge of the need for a religious accommodation to indicate that such a requirement was not called for by that statute. The Supreme Court also found that Title VII's policy toward religious practices gave employees with religious conflicts favored treatment, and, therefore, a neutral application of the Look Policy was not a defense to a finding of intentional discrimination.
An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an aspect of religious . . . practice, it is no response that the subsequent failure . . . to hire was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.
Employment litigation that involves a question about the religious accommodation of applicants is somewhat rare. When one reaches the U.S. Supreme Court, employers should listen carefully to what the Court says. One take away for employers is that even seemingly neutral policies cannot be blindly applied. Equal opportunity employment does not always mean treating everyone the same. As this case illustrates, persons with religious conflicts at work must be treated better because the law requires employers to make reasonable accommodations. Also, employers cannot ignore the obvious. When an employer suspects that an applicant or employee may have a religious belief that conflicts with employment, the employer cannot safely stick its head in the sand until the applicant or employee gives actual notice that an accommodation is needed. No magic words are required when it comes to reasonable accommodations law. Supervisors and human resources staff should be trained to identify when to affirmatively raise questions about reasonable accommodations whether for religion or a disability and how to carefully pose those questions so they remain within the boundaries of the law. So, what could Abercrombie & Fitch Stores have done to avoid this litigation, or at least to have had a better defense? First, it could have shared the company Look Policy with Elauf, and indeed with every applicant. (If you're an employer, consider for example what your attendance expectations may be and how those might conflict with religious tenets.) Then, it could have asked Elauf: 'Can you comply with this policy's prohibition on caps (or headwear), with or without a reasonable accommodation? This would have invited a dialogue between applicant and employer, beginning the interactive process, to determine whether a reasonable accommodation was needed, and if so, what that might have been.
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