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June 5, 2015

Supreme Court Weighs In On Religious Accommodations

On June 1, 2015, the United States Supreme Court reversed a Tenth Circuit decision that held that an applicant cannot prove disparate treatment without first showing that the employer had actual knowledge of the job applicant’s need for an accommodation due to her religion.  Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ______ (2015).  The Supreme Court ruled an applicant only has to show that her need for an accommodation was a “motivating factor” in the employer’s decision, not that the employer had actual knowledge of the need for accommodation.


Abercrombie has a dress code for employees that it refers to as its “Look Policy.”  The Look Policy prohibits wearing “caps” while on duty.  In 2008, Abercrombie interviewed a job applicant who is a practicing Muslim and, consistent with her religious beliefs, wears a headscarf. During the interview process, the applicant never stated that she wore the headscarf for religious reasons, and never requested that Abercrombie accommodate her religious beliefs.  Although otherwise qualified for the job, Abercrombie did not hire the applicant because the headscarf violated the Look Policy’s prohibition on caps.  

The EEOC filed suit alleging Abercrombie violated Title VII of the Civil Rights Act of 1964.  Abercrombie argued that Title VII requires employers have “actual knowledge” that an applicant may need an accommodation due to a religious conflict, and Abercrombie did not have this knowledge.

The District Court granted summary judgment in favor of the EEOC; however the Tenth Circuit reversed.  The EEOC then sought Supreme Court review of the Tenth Circuit’s decision.

The Ruling

The Supreme Court reversed the Tenth Circuit’s decision and remanded the case for further consideration.  The Court determined that “actual knowledge” of the applicant’s need for an accommodation is not required in order to prove disparate treatment.  Rather, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”  The Court explained, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”  According to the Court, an employer that refuses to hire an applicant based on a desire to avoid providing an accommodation may violate Title VII even if there is no more than an “unsubstantiated suspicion” that an accommodation would be necessary. 

Take Away for Employers

The Supreme Court’s decision in Abercrombie makes clear that an employer must consider the need for a potential accommodation even if it has only an “unsubstantiated suspicion” of the need for the accommodation.

Employers should keep in mind that civil rights laws require employers to “reasonably accommodate” employees’ and applicants’ religious practices, unless doing so would impose an undue hardship on the employer.  Similar accommodations may be required for disabilities and pregnancy.    

While the Abercrombie case was pending, the EEOC issued a guidance entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities.”  Such Guidance was not referred to by the Supreme Court and does not have the force of law, but the EEOC will rely on its own Guidance when investigating charges of discrimination.  The EEOC clearly prepared the Guidance with the facts of the Abercrombie case in mind.  In relevant part, the Guidance explains that if an employer is unsure of the need for an accommodation, it may need to seek additional information. The Guidance also explains that if an accommodation has not been requested, but it is obvious that the practice is religious and conflicts with a work policy, an employer may be required to provide an accommodation. Additional information regarding the EEOC’s Guideline on “Religious Garb and Grooming in the Workplace” is available in our March 28, 2014 Client Alert is available at  Employers should be familiar with the Guidance when making employment decisions relating to religious garb and grooming.

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If you have any questions regarding the Supreme Court’s decision in Abercrombie or any workplace accommodation issue, please contact us.