EMPLOYERS MAY HAVE TO PROVIDE RELIGIOUS ACCOMMODATIONS BASED ON A
“HUNCH” THAT THE ACCOMMODATIONS ARE NECESSARY
Date: June 9, 2015
Author: Julianne S. Hall
On June 1st, the Supreme Court decided Equal Employment Opportunity Commission (EEOC) v.
Abercrombie & Fitch and held that companies cannot make employment decisions based on workplace
rules if those rules are contrary to the religious beliefs of an employee or applicant.
In 2008 in Tulsa, Oklahoma, the clothing store Abercrombie & Fitch declined to hire a seventeen year old
applicant who interviewed for the job while wearing a headscarf. The applicant never told the
interviewer that she wore the headscarf pursuant to her Muslim faith, nor did the interviewer ask. He
decided, however, not to hire her because the scarf violated A&F’s “look policy,” which at the time
prohibited all sales employees from wearing caps or other “headwear.” The EEOC filed a lawsuit on her
behalf, and in its decision on June 1, the Supreme Court found that this violated Title VII of the Civil
Rights Act of 1964.
Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin, and
requires employers to provide reasonable religious accommodations when the accommodation does
not place any undue hardship on the business. The issue addressed in EEOC v. A&F was whether an
employer was responsible for providing an accommodation even when the employee (or prospective
employee) did not ask for the accommodation. The Supreme Court held the employer is in fact
responsible if it has any inclination that the accommodation may be necessary.
Under this holding, an applicant or employee arguing that an employment decision violates Title VII
must merely show that his or her need for an accommodation was a motivating factor in the employer’s
decision. An employer trying to avoid an accommodation violates Title VII even if he has no more than a
“hunch” that the accommodation is needed. Under this rule, even employment policies that are neutral
about religion may violate federal law if the neutral rule has a disparate impact on employees of certain
faiths. Title VII gives religious practices favored treatment, so having a neutral policy is not enough;
policies must give way to the need for an accommodation of an applicant’s religious practices unless the
employer demonstrates it is unable to make the accommodation without undue hardship.
Essentially, an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor
in employment decisions. In making those decisions, the employer does not need to have any
affirmative knowledge of the need for the accommodation.
INSIGHTS FOR EMPLOYERS
In the wake of this decision, your company should examine all policies that could potentially implicate
religious-based discrimination, including policies that appear to be neutral. This holding in this case
leaves very little wiggle-room for employers; because applicants and employees do not have to make a
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specific request for a religious accommodation to obtain relief under Title VII, your company should be
pro-active in ascertaining whether an employee requires an accommodation. If someone making an
employment decision has even the slightest suspicion that an applicant or employee may require an
accommodation, ask! For example, Justice Alito points out that Abercrombie & Fitch could have
prevented this lawsuit merely by informing the applicant about the company policy prohibiting head
coverings, and asking the applicant about her ability to comply with that policy.
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information
about this topic or any other employment issues facing your company.
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