Significant Employment Law Decision
by the United States Supreme Court
Impacts Hiring Decisions
Last month the United States Supreme Court issued a recent 7 to 2 decision that now places a substantial burden on employers with respect to their obligation to accommodate employees’ religious practices in the workplace under Title VII of the Civil Rights Act of 1964, as amended. In its decision in Equal Employment Opportunity v Abercrombie & Fitch Stores, Inc., —U.S.—-, (June 1, 2015), the Supreme Court held that an employer may not make a job applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.
Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against employees on the basis of religion, race, color, national origin, and sex. However, originally, Title VII, did not extend its protections to the accommodation of religious beliefs or practices. A 1972 amendment to Title VII eventually required employers to “reasonably accommodate” an employee’s religious practices.
“Religion” under Title VII includes:
“all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance without undue hardship on the conduct of the employer’s business.”
42 U.S.C. § 2000e(j)
The 1972 amendment remains the law, but has been consistently evolved and refined by Supreme Court decisions. The practical implication of the Court’s opinion in EEOC v Abercrombie & Fitch is that, if a job applicant who the employer failed to hire can show that the employer’s decision not to hire was based on a desire to avoid having to accommodate a religious practice, then the employer has violated Title VII.
In its decision, the Supreme Court found that, to hold an employer liable under Title VII, an applicant for a position must only show that his or her need for an accommodation was a motivating factor in the employer’s decision not to hire.
The case before the Court involved a young woman wearing head scarf during a job interview with Abercrombie and Fitch. While the issue of the woman’s religion did not come up during the interview, the employee conducting the interview assumed the woman was a Muslim and would have to wear the scarf at work which might violate the company’s “Look Policy” governing its employees’ dress. The “Look Policy” specifically prohibited the wearing of “caps” by the company’s employees, as being too informal for the company’s desired image. Seeking the input of the company’s district manager, the interviewer was informed that that the applicant’s headscarf would violate the company’s Look Policy, and the applicant was subsequently not hired.
The Abercrombie Court determined that an employer may not make a job applicant’s religious practice, confirmed or otherwise, a factor in employment decisions and that to state a claim for discrimination under Title VII a job applicant need only show that her need for an accommodation for her religious practice was a motivating factor in the employer’s decision.
The key point of the Abercrombie decision for employers to recognize is that Title VII prohibits bad motives, based upon certain suspect classifications—i.e., race, color, national origin, sex and religion—even though specific knowledge of these characteristics by the employer is not required. As the Court stated in the Abercrombie opinion:
…[a]n employer may who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”
In practice, this means that, when interviewing job applicants, any time a prospective employee’s appearance or job history, or answers to job interview questions, for example, would cause the employer to believe that the applicant has a religious practice that either requires or may require an accommodation, if the employer does not hire the applicant to avoid providing the accommodation, it has violated Title VII. Therefore, if it does not hire the job applicant for other, fully legitimate reasons, the employer should document and be fully prepared to explain its motives for not hiring the applicant in the event it is ever called to task to justify its hiring decision.