At least one hiring manager suspected that Elauf wore the headscarf as a religious practice. She so informed the district manager, who decided that the scarf would violate the "look" policy and that she would not be hired.
No one asked Elauf if the scarf was a religious practice, or investigated whether she would work without it. No one sought to determine if allowing the scare would be an accommodation for a religious practice, or whether flexing the policy would be an undue hardship. Apparently seeking to avoid these issues, they just turned her down for the job.
The EEOC sued on Elauf's behalf. The dispute before the court boiled down to whether the Company could be liable for intentional discrimination when it did not know Ms. Elauf wore the scarf for religious reasons, but at least one manager surmised that there was a religious connection to her garb. The district court had granted summary judgment in favor of the EEOC. But the court of appeals reversed and granted summary judgment in favor of A&F.
Justice Scalia, writing for a majority of 7, decided that A&F could violate Title VII without actual knowledge that a religious practice was at issue. Rather, for the Court, the issue was the motivation of the hiring managers.
First, the Court noted that under Title VII (as opposed to the ADA), the only claims available are disparate treatment or disparate impact. Therefore, "denial of religious accommodation" alone is not a claim under Title VII. That being the case, the plaintiff can win only by proving that the company's failure to hire (or other adverse action) is motivated by an illegal criterion:
The disparate-treatment provision forbids employers to: (1) “fail . . . to hire” an applicant (2) “because of ” (3) “such individual’s . . . religion” (which includes his religious practice). Here, of course, Abercrombie (1) failed to hire Elauf. The parties concede that (if Elauf sincerely believes that her religion so requires) Elauf’s wearing of a head- scarf is (3) a “religious practice.” All that remains is whether she was not hired (2) “because of” her religious practice.* * *
the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer 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.
Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.
Let us remember that this case involves a question of fact: did the company deny employment "because" she was Muslim and might seek a relaxing of the look rule? There was evidence of that motivation in the record. Therefore, the Court's only ruling was that the court of appeals should not have granted summary judgment. It remains to be seen if a jury would find that A&F denied employment motivated by the possibility of religious accommodation, or because they don't hire anyone with a headscarf. Given the hiring manager's articulated suspicion, this one is not likely to go the employer's way.
This case opens up employers to claims that are based on "perceived" religious practice. That is the employer can be wrong and still be held liable. Motivation is almost never provable before trial.
This case also establishes that under Title VII, the employee would have to prove the motivation. That is the employee has to prove the employer denied employment because it did not wish to accommodate the applicant.
This case could have been avoided had management simply asked the applicant if she could abide by the look policy if hired. That's a perfectly legal question. Then the applicant could have said "I need to wear a scarf as a religious practice." At that point, the company would be faced with two options: accommodate, or claim undue burden. In most cases, a relaxation of a dress code can be a form of accommodation.
Justice Thomas and Alito wrote separate concurrences in the judgment. Both believed the circuit court should not have granted summary judgment in favor of A&F, and correctly so. But neither agreed with the majority opinion's rationale. Justice Thomas felt that the case was one of disparate impact discrimination, seeming to ignore the evidence of unlawful bias by the hiring manager. Justice Alito appears to claim that the case was one of reasonable accommodation law rather than intentional discrimination, i.e., failure to hire. (Amateur Justice Valenza says they're both incorrect).
This case is EEOC v. Abercrombie & Fitch and the opinion is here.
