What Matters Is Motive: Religious Accommodation Need As A 'Motivating Factor' In Employment Decisions

The U.S. Supreme Court's decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.1 resulted in an expected outcome but provided an unexpectedly small amount of practical guidance for employers. The Court held that to avoid summary judgment in a religious accommodation case, a job applicant with a bona fide need for religious accommodation must prove only that a prospective employer's desire to avoid the accommodation was a motivating factor in its decision not to hire her. She need not prove the employer had actual knowledge of her need for religious accommodation. In an 8-1 decision, the Court definitively establishes:

Title VII "affirmatively obligates" employers to make exceptions to neutral employment policies to accommodate employees' religious beliefs and practices; A failure to make such an exception is a form of disparate treatment: it is intentional discrimination "because of" religious practice2; The U.S. Court of Appeals for the Tenth Circuit erred when it inserted an "actual knowledge" requirement into Title VII's prohibition against disparate treatment on the basis of religious practice; and An employer who makes an employment decision "with the motive of avoiding [a religious] accommodation" violates Title VII, even if the applicant or employee needing accommodation never requested accommodation and the employer lacks actual knowledge that accommodation is needed because of religion. But the decision provides no explicit practical guidance to employers about how best to handle a suspicion that a particular candidate may need a religious accommodation to do a job. Instead, the Court simply says:

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 (although 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.3

Unfortunately, as explained below, the facts of Abercrombie allowed the Court to cease its analysis before explaining what sort of fact pattern - other than an unheeded request for accommodation or a manager's admission - might form a sufficient basis from which to infer improper motivation for an employment decision. Accordingly, while some best practices are articulated below, a discussion of the specific facts Abercrombie presents is warranted.

What Happened in Abercrombie?

The Interview. The Abercrombie case began when a young Muslim woman interviewed for a salesperson/model job at defendant's store wearing a hijab (headscarf) that covered her hair but not her face, neck or shoulders. The hiring manager testified she assumed the applicant was Muslim when she interviewed her because of her headscarf. There was some discussion about the defendant's dress and grooming requirements in the interview, but neither the hiring manager nor the applicant mentioned the scarf. The manager thought the applicant was a good candidate for the position, but she did not know if the applicant could work for defendant while wearing a scarf. She consulted her district manager, advising him that she had a Muslim applicant who had worn a headscarf to her interview. The district manager, who claimed the hiring manager did not mention the candidate was Muslim, said the defendant could not make any exceptions to defendant's "Look Policy," which prohibited employees from wearing "caps" in the workplace. He testified he would have said the same thing if he had known the religious reason for wearing the scarf. The hiring manager never called the applicant back.

The District Court. The EEOC sued on applicant's behalf, claiming failure to accommodate. Both sides moved for summary judgment. Among other things, the defendant argued the EEOC failed to establish a prima facie case of discrimination because the applicant had not explicitly requested a religious accommodation.4 While recognizing the Tenth Circuit had not yet held whether something other than a direct, explicit request from an employee or applicant could trigger the duty to accommodate, the district court relied on cases from the Eighth, Ninth, and Eleventh Circuits and the Southern District of...