On June 1, 2015 the United States Supreme Court issued an opinion in the Abercrombie headscarf case. The specific issue answered by the court was whether Title VII, which prohibits an employer from refusing to hire an applicant to avoid accommodating a religious practice applies only where the applicant has informed the employer of a need for an accommodation.
Abercrombie adopted a “Look Policy” governing employee attire. The policy prohibits “caps”. Samantha Elauf, a practicing Muslim, wears a headscarf. She applied for a position. The assistant store manager considered her qualified but wondered whether the headscarf, which she believed Ms. Elauf wore for religious reasons, violated the Look Policy. The district manager informed the assistant store manager that the headscarf would violate the Look Policy, as would any headwear, regardless of the reason for wearing it.
Title VII prohibits an employer from discriminating against employees or applicants based on, among other things, religion. (42 U.S.C. § 2000e-2(a).) This provision is violated when an employer (1) discriminates against an employee or applicant (2) because of (3) the individual’s religion (or other protected classes). Title VII defines “religion” to include a religious observance, practice and belief “unless an employer demonstrates that he is unable to reasonably accommodate” it without undue hardship. (42 U.S.C. § 2000e(j).)
Abercrombie claimed that the duty to accommodate does not arise unless the employer has actual knowledge of the applicant’s need for an accommodation. (This is an interesting argument since the assistant store manager believed the scarf was a religious observance. Didn’t anyone ask?)
The court rejected this argument. The court held that Title VII is violated when the applicant’s need for an accommodation is a motivating factor in the employer’s decision. In this case, the only issue was whether Abercrombie’s decision not to hire Ms. Elauf was “because of” her religion.
Unlike the accommodation provision of the Americans with Disabilities Act (“ADA”), Title VII does not impose a knowledge requirement. (Cf. 42 U.S.C. § 12112(b)(5)(A).) Title VII prohibits an employer’s motive, regardless of knowledge. Thus, if the employer acts with the motive of avoiding an accommodation, Title VII is violated.
Calling it straightforward, the court wrote, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” In this particular case, the Abercrombie Look Policy, even if it is a religiously neutral policy on its face, must give way to the need for an accommodation.
The court’s decision makes an employer’s obligation under federal law very clear. If the employer’s decision is motivated by religion, including the motivation to avoid an accommodation, it is unlawful. This is the right decision and recognizes the legal rights provided to persons of religious belief.
California employers must also remember the 2013 modifications related to religion in the Fair Employment and Housing Act (“FEHA”). (See Govt. Code § 12940(l).) FEHA now requires an employer to explore any available reasonable alternative means of accommodating religious belief or observance. FEHA also requires an accommodation of religion unless it is an undue hardship to do so.