In Equal Emp’t Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015), the Supreme Court held that to prove a religion-based disparate treatment claim under Title VII of the Civil Rights Act of 1964, a job applicant need only show that her need for a religious accommodation was a motivating factor in the employer’s adverse employment action. Therefore, the applicant did not need to show that the prospective employer knew that the applicant’s practice was a religious practice requiring accommodation. More generally, the Court also observed that Title VII gives “favored treatment” to religious practices and requires employers to accommodate the same so long as the accommodation does not create an undue hardship for the employer.
Statutory Background – Title VII and Religious Discrimination
In relevant part, Title VII of the Civil Rights Act of 1964 prohibits two kinds of employment practices:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e–2(a). The first category is typically referred to as “disparate treatment” or “intentional” discrimination, and the second category is typically referred to as “disparate impact” discrimination. Abercrombie involved a claim of disparate treatment discrimination based on a job applicant’s religion.
Title VII defines the word “religion” to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” 575 U.S. 768, 771-72 (quoting 42 U.S.C. § 2000e(j)).
Therefore, Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship.
In Abercrombie, the issue for the Court was whether this rule applies only where an applicant has informed the employer of his need for a religious accommodation. 575 U.S. 768, 770.
Abercrombie was a clothing company. It imposed a “Look Policy” that governed how its employees dressed. The Look Policy prohibited “caps” as being too informal for Abercrombie’s desired image. 575 U.S. 768, 770.
The plaintiff, Samantha Elauf, was a practicing Muslim. Consistent with her understanding of her religion’s requirements, she wore a headscarf. She applied for a position in an Abercrombie store, and was interviewed by the store’s assistant manager. Using Abercrombie’s ordinary system for evaluating applicants, the assistant manager gave Elauf a rating that qualified her to be hired. However the assistant manager was concerned that Elauf’s headscarf would conflict with the company’s Look Policy. 575 U.S. 768, 770.
The assistant manager consulted with a store manager and then a district manager to clarify whether the headscarf was a forbidden “cap.” She told the district manager that she believed Elauf wore her headscarf because of her faith. The district manager told the assistant manager that Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed the assistant manager not to hire Elauf. 575 U.S. 768, 770.
The EEOC sued Abercrombie on Elauf’s behalf, asserting that the company’s refusal to hire Elauf violated Title VII. EEOC won in the trial court. The Tenth Circuit then reversed and awarded Abercrombie summary judgment. It concluded that ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of her need for an accommodation. 575 U.S. 768, 770-71 (citing 731 F.3d 1106, 1131 (2013)).
The Court’s Decision
The Court reversed the Tenth Circuit. It held that to prevail in a disparate-treatment claim, an applicant need show only that his or her need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his or her need.
First, the Court observed that Title VII’s disparate-treatment provision forbids employers to: (1) “fail … to hire” an applicant (2) “because of” (3) “such individual’s … religion” (including religious practice). In Elauf’s case, Abercrombie (1) failed to hire Elauf, and the parties agreed that (if Elauf sincerely believed that her religion so required) Elauf’s wearing of a headscarf was (3) a “religious practice.” Therefore, the Court determined that the only remaining question was whether she was not hired (2) “because of” her religious practice. 575 U.S. 768, 772.
The Court then discussed the meaning of “because of.” The Court observed that under its decision in University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338, 133 S.Ct. 2517 (2013) “because of” refers to the traditional notion of “but-for” causation. 575 U.S. 768, 772-73. It further observed, however, that Title VII relaxes this standard to prohibit even making a protected characteristic a “motivating factor” in an employment decision. 575 U.S. 768, 773 (quoting 42 U.S.C. § 2000e–2(m)).
The Court explained that the “because of” language in § 2000e–2(a)(1) links the forbidden consideration to each of the verbs preceding it. Therefore, an individual’s actual religious practice may not be a motivating factor in failing to hire, in refusing to hire, and so on. 575 U.S. 768, 773.
Importantly, the Court found, § 2000e–2(a)(1) does not impose a knowledge requirement on the employer. This makes Title VII different from some other antidiscrimination statutes, which do impose a knowledge requirement. For example, the Americans with Disabilities Act of 1990 defines discrimination to include an employer’s failure to make “reasonable accommodations to the known physical or mental limitations” of an applicant. 575 U.S. 768, 773 (quoting 42 U.S.C. § 12112(b)(5)(A) (emphasis added by the Court). But Title VII contains no such limitation. 575 U.S. 768, 773.
Therefore, the Court determined that Title VII’s intentional discrimination provision “prohibits certain motives, regardless of the state of the actor’s knowledge.” 575 U.S. 768, 773 (emphasis in original). This is because “[m]otive and knowledge are separate concepts.” Id. For example, the Court pointed out that “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.” Id. (emphasis in original). And on the other side of the token, “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.” Id.
Using this rationale, the Court found a straightforward rule for disparate-treatment claims based on a failure to accommodate a religious practice: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Id.
As an example of this rule, the Court provided a hypothetical where an employer thought (without knowing for certain) that a job applicant may be an orthodox Jew who would observe the Sabbath, and therefore be unable to work on Saturdays. The employer could not, under Title VII, decline to hire the applicant if the employer’s desire to avoid that accommodation was a motivating factor in that decision: “If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.” 575 U.S. 768, 773-74.
Finally, the Court rejected Abercrombie’s argument that in declining to hire Elauf it did not violate Title VII’s intentional discrimination requirement because it was simply applying a “neutral policy” about headwear. The Court observed that religious practices are entitled to “favored treatment” under Title VII:
But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual … because of such individual’s” “religious observance and practice.”
The Court acknowledged that an employer like Abercrombie is entitled to have a no-headwear policy “as an ordinary matter.” But when an applicant requires an accommodation as an “aspec[t] of religious … practice,” the Court found that it would be no response for an employer to argue that the subsequent “fail[ure] … to hire” was due to an otherwise-neutral policy. Instead, “Title VII requires otherwise-neutral policies to give way to the need for an accommodation.” 575 U.S. 768, 775.
In sum, Abercrombie held that to prove a religion-based disparate treatment claim under Title VII, a job applicant need only show that her need for a religious accommodation was a motivating factor in the employer’s adverse employment action. This rule does not require the applicant to show that the prospective employer knew that the applicant’s practice was a religious practice requiring accommodation. More generally, the Court observed that Title VII gives favored treatment to religious practices and requires employers to accommodate the same so long as the accommodation does not create an undue hardship for the employer.
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