Justice Scalia wrote the majority opinion for the Supreme Court decision issued yesterday in the Abercrombie case. For those who haven’t been following the Supreme Court docket this year (and only stumbled upon this blog post because you were, in fact, looking for a new pair of Abercrombie jeans), this case relates to the EEOC lawsuit that was filed on behalf of a woman who applied to Abercrombie and was denied a position because the headscarf she wears violates Abercrombie’s Look Policy which prohibits “caps” – and I seem to recall from oral argument that it also prohibits clothing that is black.
The crux of the case is that the woman wore the headscarf due to her Muslim faith and, accordingly, needed an accommodation that would permit her to wear the headscarf even though this would directly violate the Look Policy. During the application phase, the decision was made that the headscarf could not be worn and she was not given the job. The difficult part of this case is that Abercrombie did not necessarily know that she needed to wear the headscarf for a religious reason. Actually, in Abercrombie’s brief in opposition to the petition for writ of certiorari, Abercrombie claimed it did not have any actual knowledge that the need was for a religious practice from any source. So – you might be wondering how Abercrombie would have known it even had to provide a “religious accommodation” under Title VII if it had no idea the accommodation that was needed was for religious reasons. (Stay with me here – I will give you an answer-ish soon….)
Very simply, the issue in this case is whether an employer can be liable under Title VII for refusing to hire an applicant and provide an accommodation of a “religious observance and practice” only if the employer has actual knowledge that a reasonable accommodation was required.
So, jumping to what I know everyone is interested in… the answer… the Supreme Court found that an employer may be liable for discrimination even if it lacks knowledge of the need for an accommodation.
Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.
One interesting distinction is that, while Title VII does not include a knowledge component, other statutes – such as the Americans with Disabilities Act – do include one. The ADA, for example, requires accommodations for known physical or mental limitations. Therefore, this case may have turned out differently if it were under the ADA and not Title VII.
Under Title VII, an applicant needs to only show that the need for an accommodation was a motivating factor in the employment decision–not that the employer had knowledge of the need. If a religious practice can be accommodated without undue hardship, then the company needs to accommodate such practice. Confusing as this may sound (i.e., the fact that we now have intentional discrimination without knowledge), this decision confirms there is a “motive” and not a “knowledge” standard.
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.
Basically, absent an undue hardship, “otherwise-neutral policies must give way to the need for an accommodation.” At first glance, this sets the bar very low for employees who now arguably do not necessarily have to fully explain why they may be requesting an accommodation or variance from a company’s policies and procedures but can still assert a claim for disparate treatment. It almost sets the onus on the company to ask an employee if he/she is requesting an accommodation for a religious practice, BUT a footnote in the decision provides an inch of leeway that should be helpful for employers.
While this issue was not presented nor decided in the case, it confirms that:
[I]t is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate because of a religious practice” unless he knows or suspects it to be a religious practice.
Therefore, companies need to consider to what extent they need to evaluate requests for accommodations and/or seek additional information regarding applicants or employees who are making such requests–when they cross over the minimum threshold of information and suspect the request may be one for a religious accommodation. Particularly in the application context, less is more–meaning that the less you know about an individual’s protected class the better, because it cannot influence the decision-making process, but now–perhaps there needs to be more inquiry. If an employer can be liable under the disparate treatment theory for discrimination even if it did not have knowledge, then perhaps there is more than needs to happen if an employer suspects that a request is being made as an accommodation.
The last thing to keep in mind is that this case is still on-going. It has been remanded to determine whether Abercrombie violated or didn’t violate Title VII now that the standard is clear.