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Supreme Court Agrees With EEOC on Duty to Accommodate Suspected Religious Practices

    Client Alerts
  • June 05, 2015
Last year, the Tenth Circuit Court of Appeals issued a controversial opinion absolving a clothing retailer from failing to hire a Muslim applicant for employment who did not tell the company that the headscarf worn at her job interview was based on religious observation. On Monday in an 8-1 decision, the U.S. Supreme Court reversed this determination, finding that employers cannot discriminate on the basis of religion even if this was not their direct intent.

In EEOC v. Abercrombie & Fitch Stores, Inc., a Muslim teenager applied for a sales position with the clothing retailer. The defendant's dress code for salespersons prohibited headwear, but the company had made accommodations in the past based on religious practices. During the interview, the plaintiff wore a headscarf, but never mentioned that she was Muslim. The subject of the headscarf never came up. The interviewing manager later asked her supervisor about the headscarf, and he informed her that it was inconsistent with company dress expectations. The plaintiff's interview score was adjusted on this basis, and she was not offered a job. She sued, claiming religious discrimination under Title VII.

The Tenth Circuit granted summary judgment to the defendant, concluding that wearing the headscarf was not an absolute indication that it was based on religious beliefs, even for Muslims. Some Muslims wear headscarves for cultural or other reasons unrelated to their belief system. The applicant never indicated that removing the headscarf at work would present a conflict with her beliefs. The Tenth Circuit noted that the EEOC discourages employers from asking about applicants' religion during the hiring process. Therefore, the applicant had an affirmative obligation to inform the company of her need for a religious accommodation. The appellate court rejected the EEOC's position that based on a totality of the circumstances, the employer knew or should have known of the need for the accommodation.

On appeal, the Supreme Court rejected this reasoning, finding that Title VII’s religious accommodation obligation extends beyond situations where the employee specifically requests such accommodation. Plaintiffs do not have to demonstrate actual knowledge by the employer of the need for the accommodation. As long as religion is a motivating factor in the employer’s adverse decision, it triggers the statute’s reasonable accommodation requirements. In this case, the hiring manager told her supervisor of her belief that the applicant wore the headscarf based on religious practices.

This outcome was widely predicted by employers, and may reflect what many observers consider an unworkable legal test devised by the Tenth Circuit. If an applicant is not aware of the hiring criteria used by the employer, and the employer suspects but never asks whether an observed practice is based on religious beliefs, how should the applicant know whether or not to raise the issue and affirmatively request an accommodation? Justice Scalia wrote the majority opinion, reflecting wide belief across the Court’s ideological spectrum over the Tenth Circuit’s misreading of the statute.

In practice, this decision may not change much. Most employers who interview a candidate for employment who wears clothing or mentions practices commonly known to be linked to religious practices would assume that they have sufficient knowledge to trigger an accommodation analysis. If the religious practice is truly unknown from the interview process, the employer has no obligation to inquire and to accommodate. However, any belief on the part of the employer that a religious practice disqualifies an applicant or employee from the job triggers Title VII’s protections.