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Abercrombie Decision Places Burden on Employers to Avoid ‘Accidental’ Discrimination in Pre-Employment Practices

Published by on June 18, 2015

Employers looking to project their brand through the “look” of their employees take notice: Ignorance of an employee’s need for religious accommodation is not a shield against liability. On June 1, 2015, the United States Supreme Court held that an employer can be liable for discrimination when a job applicant can show that his or […]

Employers looking to project their brand through the “look” of their employees take notice: Ignorance of an employee’s need for religious accommodation is not a shield against liability.

On June 1, 2015, the United States Supreme Court held that an employer can be liable for discrimination when a job applicant can show that his or her need for a religious accommodation was a motivating factor in the employer’s decision to not hire, even if he or she cannot show that the employer actually knew of her need for accommodation.

The 8-1 opinion, delivered by Justice Antonin Scalia, held that the clothing retailer Abercrombie & Fitch violated the disparate-treatment provision of Title VII of the Civil Rights Act of 1964 when it lowered Samantha Elauf’s pre-employment rating because she, a Muslim teenager, wore a headscarf during her interview.

Abercrombie claimed that it did not have actual knowledge of Elauf’s religious practice and that Abercrombie’s “Look Policy”— which forbids “caps” — was merely one nondiscriminatory factor in their hiring decision.

Justice Scalia’s opinion, joined by Justices Breyer, Ginsburg, Kagan, Kennedy, Roberts and Sotomayor, demonstrated unanimity across perceived ideological differences. The Court made clear that (1) Title VII creates an affirmative duty to accommodate religious practices, (2) job applicants do not need to specifically communicate a need for religious accommodation to potential employers, and (3) employers cannot shield themselves from liability by claiming ignorance of a job applicant’s need for accommodation.

If a rejected applicant can show that their need for accommodation due to their actual religious practice was a motivating factor in the employer’s decision, the employer can be held liable.

Justice Samuel Alito concurred with the ultimate result, but expressed concern that employers would be exposed to liability through no fault of their own. He would have required Elauf to show that Abercrombie knew of her need for accommodation, but found “ample evidence” that Abercrombie indeed knew of Elauf’s religious observance.

Justice Alito’s concurrence sends employers a message: evidence that an applicant’s religious observance is a motivating factor usually creates the presumption that the employer knew of the need for accommodation.

Employers must ensure that their hiring and employment policies provide flexibility to accommodate a job applicant or employee’s religious observations. More importantly, employers cannot hide behind “look” policies such as Abercrombie’s to avoid liability for discrimination. When considering the policies of peer institutions, employers should note that the United States Department of Defense, with its exacting guidelines for dress and appearance, has granted accommodations for religious observance such as allowing Sikh soldiers to wear turbans and beards.

Laconic Lookout:

Employers should consider reviewing their pre-employment and employment policies to ensure both that (a) religious accommodation is clearly defined and discussed, and that (b) the employer’s policies do not create an easy condition for an incident of religious discrimination to be created as an unintended consequence.

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