The U.S. Supreme Court recently handed down an important decision regarding Title VII of the Civil Rights Act of 1964. Its ruling in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. addressed a dispute between a Muslim plaintiff and the employer who refused to hire her because her headscarf — or “hijab” — violated the company’s dress code.

“Caps” prohibited

The employer refers to its sales staff as “models” and requires them to comply with a “Look Policy.” The policy prohibits the wearing of “caps,” though it doesn’t clearly define the term.

The Equal Employment Opportunity Commission (EEOC) sued the employer, alleging religious discrimination for refusing to hire the plaintiff because of her religious practice of wearing the scarf. The agency asserted that she could have been accommodated without undue hardship. The trial court granted the EEOC summary judgment, and the plaintiff was awarded monetary damages. The employer appealed.

The U.S. Court of Appeals for the Tenth Circuit reversed and awarded summary judgment in the employer’s favor. The court found that an employer can’t be liable under Title VII for failure to accommodate a religious practice unless the applicant provided the employer with actual knowledge of the need for an accommodation. The EEOC appealed, and the Supreme Court accepted the case.

No knowledge required

The High Court reversed the grant of summary judgment and remanded the case to the appellate level for further consideration. The Court stated, “To prevail in a disparate treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.”

The disparate treatment provision of Title VII forbids employers to refuse to hire an applicant “because of” the individual’s religion. The Court stated that Title VII relaxes the usual but-for causation standard to that of a “motivating factor.” Thus, an individual’s religious practice may not be a motivating factor for refusing to hire that person.

The employer argued that the Supreme Court should adopt the appellate court’s rule requiring that the employer have actual knowledge of an applicant’s religious practice. But the Supreme Court held that Title VII’s disparate treatment provision doesn’t impose a knowledge requirement, and the Court wouldn’t add language to the law. Therefore, Title VII prohibits employer actions taken with the motive of avoiding a need for a religious accommodation — even if the employer had no more than an unsubstantiated suspicion that an accommodation may have been needed.

Treatment analysis appropriate

The employer also argued that a claim based on failure to accommodate should be a disparate impact analysis, not a disparate treatment analysis. Disparate treatment claims are ones in which the applicant or employee alleges that she was the victim of intentional discrimination on the employer’s part. Plaintiffs must show that they were treated less favorably because of religion, and that the differential treatment is the result of a discriminatory motive or intent.

Disparate impact claims, on the other hand, involve employment practices that are apparently neutral in their treatment of different groups but, in fact, fall more harshly on one group than another. Disparate impact claims don’t involve intentional discrimination, so plaintiffs aren’t required to prove that they were the victim of discriminatory motive or discriminatory intent.

In this case, the Supreme Court stated that, because Title VII defines religion to include religious practice, it’s a protected characteristic that must be accommodated and can’t be treated disparately. As such, a disparate treatment analysis is appropriate for a failure-to-accommodate claim.

In addition, the employer argued that a neutral policy, such as its no “caps” requirement, couldn’t constitute intentional discrimination. But the Court found that Title VII requires employers to provide religious accommodations — even for neutral policies. It isn’t a defense for an employer to refuse to hire an applicant because the applicant would require a religious accommodation for an employer’s neutral policy.

Training is needed

This case demonstrates that even a seemingly neutral dress code may not hold up in court. Train your managers to recognize when you might need to provide a religious accommodation, and consult your attorney on whether you can do so without imposing undue hardship on your organization.  

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