Earlier this year in its Abercrombie decision, the U.S. Supreme Court stated that an employee suing for religious discrimination did not have to demonstrate actual knowledge of an employee’s religious practices to trigger Title VII’s accommodation requirements. Last month, the Fifth Circuit Court of Appeals concluded that Abercrombie does not change the results for a plaintiff who never demonstrated any knowledge of her religious practices on the part of her employer.

This was the second time the Fifth Circuit considered Nobach v. Woodland Village Nursing Ctr., Inc. The plaintiff, an aide at the home, alleged that she was fired when she refused to read the rosary to a patient based on her conflicting religious beliefs. In its initial review, the Fifth Circuit concluded that the plaintiff failed to prove that the employer knew of the religious basis for her refusal before making the termination decision. The court agreed to revisit its decision in light of Abercrombie.

This review led the Fifth Circuit to the same conclusion. Abercrombie requires federal courts to look at the employer’s motivation for the decision made. If this decision is based on knowledge or suspicion of the employee’s religious beliefs or practices, this triggers the accommodation process even in the absence of an explicit disclosure of these beliefs by the employee. In this case, the plaintiff could not demonstrate any such knowledge, direct or indirect, and the employer’s termination decision was based on assumed insubordination.

This decision raises a difficult problem for employees. The opinion does not indicate whether the employer ever asked the employee why she refused to read the rosary. This failure was reported by a co-worker, and the employer immediately made the termination decision based on past warnings, without reviewing the incident with the plaintiff. The Fifth Circuit appears to reward an employer that might have discovered the religious basis for the employee’s action prior to dismissal had it engaged in better human resource practices. While willful refusal to consider such possibilities might violate the Abercrombie standard, an employer that leaps to a final termination conclusion could avoid liability for failing to provide an accommodation based on information that otherwise would have been discovered.