Does an employer violate Title VII by refusing to hire an applicant or by discharging an employee based on a religious observance when the applicant or employee failed to provide actual knowledge to the employer, through explicit notification, of the applicant’s or employee’s need for a religious accommodation?
The Supreme Court will determine whether an employer can be liable under Title VII for refusing to hire a candidate or dismissing an employee only if the employer had actual knowledge, gained by the candidate’s or employee’s explicit notification, that the candidate or employee required a religious accommodation. The EEOC argues that an employer violates Title VII when the employer refuses to hire an applicant or dismisses an employee based on “a religious observance and practice” that could be reasonably accommodated. Abercrombie & Fitch counters that its denial of an exception to a religion-neutral store policy—a look policy considered crucial to the vitality of its business—is not intentional discrimination under Title VII. The Supreme Court’s decision will implicate Title VII’s role in religion-neutral work policies as well as who bears the burden of raising the need for religious accommodations in the workplace.
Questions as Framed for the Court by the Parties
Title VII of the Civil Rights Act of 1964 makes it illegal for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's * * * religion." 42 U.S.C. 2000e-2(a)(l). "Religion" includes "all aspects of religious observance and practice" unless "an employer demonstrates that he is unable to reasonably accommodate" a religious observance or practice "without undue hardship on the conduct of the employer's business." 42 U.S.C. 2000e(j).
The question presented is whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.
Abercrombie & Fitch Stores, Inc. (“Abercrombie”) is an American clothing company with stores across the United States that operates under several names, including Abercrombie & Fitch, Abercrombie Kids, and Hollister Co. Abercrombie requires its sales associates—known as “Models”—to follow the company’s Look Policy. A Model’s primary job is to showcase Abercrombie’s “preppy” and “casual” clothing on the sales floor. The Look Policy prohibits Models from wearing black clothing and “caps”—a term undefined in the dress code.
Store managers evaluate Model candidates on their “appearance & sense of style,” “sophistication & aspiration,” and on whether candidates are “outgoing & promote diversity.” Corporate Policy instructs managers not to assume or inquire about a candidate’s religion, but if a candidate wishes to deviate from the Look Policy or requests for a religious-based exception, human resources managers may grant those exceptions if the exceptions do not damage the brand.
In 2008, seventeen-year-old Samantha Elauf, a self-proclaimed practicing Muslim, interviewed for a Model position at an Abercrombie Kids store in Tulsa, Oklahoma.During her interview, Elauf wore Abercrombie-style clothing and a black hijab—a religious headscarf. The assistant manager interviewing her, Heather Cooke, did not confirm Elauf’s religion but “assumed that she was Muslim.” During the interview, Cooke did not ask Elauf about her headscarf and Elauf did not bring it up. Although Cooke thought Elauf was a good candidate, Cooke asked her supervisor if wearing a headscarf was permissible and whether the headscarf could be black. The supervisor escalated this question to the district manager, Randall Johnson, who declared that Elauf’s headscarf violated the Look Policy and Elauf should not be hired. Cooke claims that she informed Johnson that Elauf wore a headscarf for religious reasons but Johnson denies this claim.
On September 17, 2009, the Equal Employment Opportunity Commission (“EEOC”) filed a Title VII action in the United States Northern District of Oklahoma (“district court”) alleging that Abercrombie rejected Elauf because she wore a hijab and then failed to make a religious-based exception to its Look Policy. The district court ruled in favor of the EEOC, reasoning that Elauf’s wearing of the headscarf coupled with Cooke’s knowledge that Elauf wore the headwear as part of a religious belief provided sufficient notice of the need for a reasonable religious accommodation, awarding the EEOC $20,000 in compensatory damages.
In October 2013, the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) reversed the district court’s ruling and remanded the case because it found conflicting evidence on both sides regarding whether Abercrombie needed to initiate an interactive dialogue with Elauf about the possible conflict of the work policy with her religious practices. The United States Supreme Court granted certiorari to determine whether an employer who refuses to hire a candidate or dismisses an employee because of a religious practice violates Title VII of the Civil Rights Act of 1964 only if the employer had actual knowledge that a religious exception was required and that the knowledge resulted from the candidate’s or employee’s direct notice.
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from “fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to discriminate against any individual” based on religion, which includes “religious observance and practice” that the employer can reasonably accommodate without undue hardship. In this case, the Supreme Court will decide whether an employer is liable under Title VII for enforcing an employment policy against an employee or applicant only if the employer has actual knowledge—based on direct notice from the individual—that the individual’s religion conflicts with the policy. The EEOC argues that an employer violates Title VII when the employer disfavors prospective employees based on “protected attributes” such as religious practice. Abercrombie counters that denying a religious exemption from a religion-neutral dress code is not intentional discrimination, and thus does not violate Title VII, particularly where the applicant did not inform Abercrombie that she wore the headscarf for religious reasons.
REFUSAL TO HIRE “BECAUSE OF” RELIGION
The EEOC equates an employer’s decision not to hire a prospective employee with intentional discrimination when (1) the decision is based on what the employer correctly assumes is a religious practice and (2) where the employer could reasonably accommodate that practice without undue hardship. According to the EEOC, this basis for denying employment fits neatly within the plain meaning of Title VII’s “because of” language; such an employer has impermissibly declined to hire the applicant “by reason of” or “on account of” the applicant’s religious observance or practice.
The EEOC also raises an alternate ground for finding Abercrombie liable under Title VII: the EEOC notes that a complainant may establish an unlawful employment practice by demonstrating that religion was a “motivating factor” in the refusal to hire. According to the EEOC, an employee’s or applicant’s religious practice is a “motivating factor” in an employer’s hiring decision when the refusal was based on what the employer correctly understood to be a religious practice.
Abercrombie disputes the EEOC’s interpretation of the “because of” language in Title VII. According to Abercrombie, the Supreme Court defines “intentional discrimination” as “action taken because of, not merely in spite of, its adverse effects on a class.” To illustrate the distinction, Abercrombie cites to Trans World Airlines, Inc. v. Hardison, in which an airline company assigned shifts to airline employees based on a seniority system. Because a Saturday shift interfered with the assigned employee’s Sabbath observance, he notified his employer about the conflict, and the employer refused to make an exception for the employee’s religious practice. The employee did not show up for his shift and was subsequently fired. Abercrombie notes that although the Supreme Court found that the employer fired the employee “because of” his Sabbath observance, the Court held that the airline’s seniority system was entirely lawful—despite the system’s potentially discriminatory effects—because the system lacked “discriminatory purpose.” To that end, Abercrombie analogizes the seniority system to Abercrombie’s neutral headwear ban, which “is not intentional discrimination ‘because of’ the religious practice of wearing a headscarf.” In other words, Abercrombie argues that because the Look Policy’s headwear ban is religion-neutral, the ban is not intentional discrimination “because of” religion. Abercrombie explains that “discrimination ‘because of’ religious practice” implies that Abercrombie would hire other candidates engaged in a similar secular practice, such as wearing a baseball cap or a helmet. According to Abercrombie, the Look Policy categorically prohibits headwear, which includes baseball caps and headscarves alike. Thus, Abercrombie argues, both EEOC’s intentional-discrimination and “motivating factor” claims must fail.
According to the EEOC, an employer triggers its obligation to reasonably accommodate religious practices once the employer becomes aware of a potential conflict between the employee’s religious practice and the employer’s policies. To that end, the EEOC emphasizes that notice under Title VII need not rise to the level of actual knowledge obtained from an employee’s direct statements. The EEOC cites to basic principles of tort law for the proposition that an individual acts with “intent” when the individual desires the consequences that are “substantially certain to result” from his actions. The EEOC also notes that “an employer has ‘discriminatory intent or motive’ when the employer discriminates based on a protected attribute,” even if the employer lacks “animus.” Therefore, the EEOC contends, discrimination was “substantially certain to result” from enforcement of the Look Policy’s headwear ban against Elauf’s headscarf.
Abercrombie counters that neither “actual knowledge” nor a “correct understanding” of a religious conflict establishes “intentional discrimination.” First, Abercrombie rejects the EEOC’s reference to the “substantially certain to result” test; according to Abercrombie, a deliberate act with “foreseeable” consequences is not intentionally discriminatory. The real test of intent, Abercrombie maintains, is not “volition” or “awareness of consequences,” but rather a “discriminatory purpose.” Second, Abercrombie argues that the fact that Elauf wore the headscarf as a religious practice was “irrelevant” to the decision not to hire Elauf because Abercrombie would have declined to hire Elauf even if she wore the headscarf for non-religious purposes. Abercrombie emphasizes the fact that the Look Policy bans all religious and non-religious headgear alike. Thus, Abercrombie argues that the EEOC has failed to establish its intentional-discrimination claim because the EEOC has not demonstrated intent to discriminate “because of” Elauf’s headscarf.
IS WEARING A HEADSCARF AT WORK A POTENTIAL UNDUE HARDSHIP ON ABERCROMBIE?
The EEOC also notes that the Tenth Circuit did not address Abercrombie’s challenge to the district court’s determination that no dispute of material fact existed as to whether accommodating Elauf’s headscarf would have imposed an “undue hardship” on the Abercrombie brand. The EEOC argues that because the Tenth Circuit did not decide whether the EEOC was entitled to summary judgment on Abercrombie’s undue hardship defense, the Supreme Court should remand the case to the Tenth Circuit to consider the issue.
Abercrombie, on the other hand, wholly attributes the commercial success of the Abercrombie brand to the strict enforcement of its Look Policy. According to Abercrombie, the Look Policy fosters “consistent brand messaging” and uniform guidelines for proper employee attire and grooming; Abercrombie believes this type of policy is “crucial” in protecting the company’s brand. Abercrombie notes that the Look Policy specifically proscribes all headwear, including headscarves, because such attire is too “informal” and interferes with the “preppy look of the Ivy League” that Abercrombie strives to project through its Look Policy.
The Supreme Court will determine whether an employer violates Title VII by refusing to hire a candidate or dismissing an employee only if the employer has actual knowledge that the employee required a religious accommodation and that knowledge resulted from the employee’s direct notice. The EEOC argues that Title VII precludes employers from refusing to hire candidates or discharging employees based on what the employer believes to be a religious practice. Abercrombie counters that rejecting an exemption to a religion-neutral policy does not constitute intentional discrimination in violation of Title VII. The Supreme Court’s decision will implicate the role of Title VII in employer-employee relationships and will establish who bears the burden of addressing religious accommodation needs in the workplace.
THE ROLE OF TITLE VII IN EMPLOYER-EMPLOYEE RELATIONSHIPS
The EEOC and supporting amici argue that Title VII protects candidates against disparate treatment during the hiring stage—the most vital stage of the employment process. The American Jewish Committee (“AJC”) maintains, in support of the EEOC, that Title VII’s protection against religious discrimination improves “the larger society” by capitalizing on the skills of religious individuals. The AJC further argues that Title VII benefits employers, employees, and consumers by providing an incentive, arising from a legal duty, to potentially change their perspective and become accepting of people from differing religious backgrounds. Moreover, fifteen religious and civil rights organizations contend, in support of the EEOC, that because automated online applications present barriers for candidates to alert employers of scheduling restrictions based on religious observations, a ruling for the EEOC will ensure that observers of holy days that occur during the business week receive fair treatment.
Abercrombie and supporting amici counter that under Title VII, an employer’s failure to exempt someone from a neutral rule, even if such a rule burdens some religions, does not amount to intentional discrimination. The United States Chamber of Commerce and the National Federal of Independent Business Small Business Legal Center argue, in support of Abercrombie, that consistent with Title VII’s history, statutory text, and structure, there is no freestanding obligation on an employer to accommodate religious practices absent undue hardship. The Cato Institute asserts, in support of Abercrombie, that Title VII is merely a “limited intrusion” to at-will employment and without a violation of a protectable right, employers may act adversely for any reason—or no reason at all—without fear of liability when the employer lacks sufficient information to determine that lack of compliance to a work rule is due to a religious belief.
WHO BEARS THE BURDEN OF ADDRESSING A NEED FOR A RELIGIOUS ACCOMODATION IN THE WORKPLACE?
The EEOC and supporting amici argue that employers possess greater knowledge of company policies than employees and are better equipped to detect religious conflicts arising in the workplace. The Council on American-Islamic Relations (“CAIR”), in support of the EEOC, contends that employers can visually identify common religious dress and grooming at work, and are thus placed “on notice” for religious accommodations. The CAIR fears that placing the burden on employees to provide explicit notice would provide employers a legal means to discriminate against candidates whose dress or grooming is indicative of their faith and would result in decreased hiring of minority religious candidates.
Abercrombie and supporting amici counter that employees and candidates are in a superior position than employers to initially address religious conflict. In support of Abercrombie, the Cato Institute argues that employees must bear the burden of notifying an employer of necessary religious accommodations because of the “inherently personal nature” of religion. The Cato Institute contends that employees are in a better position to know whether their practices constitute membership in organized religion, a system of personal beliefs, or other practices. The Equal Employment Advisory Council agrees, arguing that because certain acts can be construed as both secular and religious—for example, body piercing, tattoos, and facial hair—it is the employee’s duty to notify the employer of religious conflicts.
The Supreme Court will decide whether an employer is liable under Title VII for enforcing an employment policy against an employee or applicant only if the employer actually knows that the employer’s job requirements conflict with the individual’s religious practices and the employer’s knowledge results from the employee’s direct, explicit notice. The EEOC argues that an employer violates Title VII when the employer refuses to hire an applicant “based on what the employer correctly understands to be a religious practice.” Abercrombie & Fitch counters that denying a religious exemption from a religion-neutral dress code is not intentional discrimination in contravention of Title VII. The Supreme Court’s ruling will implicate Title VII’s role in employer-employee relationships and determine who has the duty to address religious accommodation needs in the work environment.
- Susan Berfield: The Supreme Court Will Decide if Abercrombie is Guilty of Religious Discrimination, Bloomberg Businessweek (Oct. 2, 2014).
- Lawrence Hurley: Case Of Muslim Woman Denied Job At Abercrombie & Fitch To Go Before Supreme Court, The Huffington Post (Oct. 2, 2014).
- Zach Warren: SCOTUS Expands Docket, Picks Up Key Discrimination Case, Inside Counsel (Oct. 3, 2014).