According to the Court, the applicant was
qualified to be hired for the position, but the assistant store manager shared
concerns with the District Manager about whether the applicant’s headscarf would
violate the company’s policy against wearing “caps.” She assumed that the applicant wore the scarf
because of her religious faith. The
District Manager said the scarf would violate the Company’s policy and directed
the assistant manager not to hire the applicant. The applicant was never informed about the
policy and never requested to be accommodated.
The EEOC then filed suit, prevailed on summary judgment and obtained $20,000
on her behalf. On appeal, the Tenth
Circuit Court of Appeals reversed and ruled in favor of the employer on summary
judgment on the grounds that the applicant never requested an accommodation and
the employer lacked actual knowledge that she wore the scarf as a religious
practice.
Under Title VII, religion “is defined to ’includ[e]
all aspects of religious observance and practice, as well as belief, unless an
employer demonstrates that he is unable to reasonably accommodate to’ a ‘religious
observance or practice without undue hardship on the conduct of the employer’s
business.’” Unlike the ADA, which
requires accommodation and prohibits discrimination against only known disabilities, Title VII prohibits
only unlawful motives “regardless of the state of the actor’s knowledge.” The Court declined to read words in the
statute that were put there by Congress. “We construe Title VII’s silence as
exactly that: silence.”
Motive and knowledge are separate concepts. 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.
. . . 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 (though 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.
The Court also rejected any argument that a neutral
employment practice could be used to support a disparate treatment claim:
Nor does the statute limit disparate-treatment claims to only
those employer policies that treat religious practices less favorably than
similar secular practices. Abercrombie’s argument that a neutral policy cannot
constitute “intentional discrimination” may make sense in other contexts. But
Title VII does not demand mere neutrality with regard to religious
practices—that they be treated no worse than other practices. Rather, it gives
them favored treatment, affirmatively obligating employers not “to fail or
refuse to hire or discharge any individual . . . because of such individual’s”
“religious observance and practice.” An employer is surely entitled to have,
for example, a no headwear policy as an ordinary matter. But when an applicant
requires an accommodation as an “aspec[t] of religious . . . practice,” it is
no response that the subsequent “fail[ure] . . . to hire” was due to an
otherwise-neutral policy. Title VII requires otherwise-neutral policies to give
way to the need for an accommodation.
Finally, the Court addressed the obvious question -- that it
is difficult to have motive unless there is some level prior knowledge -- and
refused to address whether liability would attach without some knowledge or
suspicion:
While a knowledge requirement cannot be added to the motive
requirement, it 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. That issue
is not presented in this case, since Abercrombie knew—or at least
suspected—that the scarf was worn for religious reasons. The question has
therefore not been discussed by either side, in brief or oral argument. It
seems to us inappropriate to resolve this unargued point by way of dictum, as
the concurrence would do.
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
