Recall back in April of this year we blogged about the case of Samantha Elauf, a Muslim, who was seeking employment with the well-known clothing chain of Abercrombie & Fitch. A&F you will recall has a “Look Policy” that essentially requires its employees to dress in collegiate type apparel to reflect and coincide with the stores East Coast young adult look.
Ms. Elauf, who is of the Muslim faith, sought employment with A&F and presented at her interview dressed in the traditional Muslim garb that included a headscarf also known as a hijab. The hijab, which you have likely seen before, is made generally out of a cloth like material that is intended to cover or hide a woman’s head and chest. During Ms. Elauf’s interview, while she did not discuss her faith nor request an accommodation, it was reasonably evident to the interviewer that if hired, Ms. Elauf would likely wear the hijab to work, which would contravene company policy. A&F did not offer employment to Ms. Elauf. Ms. Elauf filed a complaint with the EEOC who filed a complaint against Abercrombie & Fitch.
The district court granted A&F’s motion for summary judgment finding the EEOC established a prima facie case for religious discrimination in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits an employer from discriminating against any individual with respect to employment because of that individual’s religion. 42 U.S.C.S. §2000e-2(a)(1). The Tenth Circuit reversed on the grounds that Ms. Elauf never expressly asked for a religious accommodation and therefore Abercrombie & Fitch could not have discriminated against her. The issue of actual knowledge versus constructive knowledge went to the Supreme Court who ultimately reversed the Tenth Circuit holding actual knowledge of an accommodation was not a prerequisite under the statute.
While Title VII does not speak to any specific knowledge on the part of the employer, Justice Antonin Scalia writing for the majority held that the intentional discrimination portion of the statute prohibits discriminatory motives despite the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer does not violate Title VII despite having knowledge of an accommodation as long as the employer is without a discriminatory motive when refusing to hire an applicant. On the other hand, an employer could be liable under Title VII where an employer seeks to avoid an accommodation despite having only a suspicion that the applicant will request an accommodation.
What can we learn from the Abercrombie & Fitch case – well if you are an employer you may not consider an applicant’s religious practice when making your employment decisions – this is true regardless of whether you know for sure that an accommodation will be sought.