June 3, 2015

Supreme Court Opens The Door To More Religious Accommodation Claims

In a near-unanimous 7-page opinion, the U.S. Supreme Court held that employers need not have “actual knowledge” that an employee is requesting a modification of his position for religious purposes in order to be required to reasonably accommodate that request.  While the decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. was not terribly surprising, the Court’s broad consensus was. 

The case involved a Muslim woman, Samantha Elauf, who applied to work in an Abercrombie store in the Midwest and wore a religious headdress, a hijab, to the interview.  At no point during the interview did Elauf state that she needed to wear the headdress for religious purposes, and she was deemed qualified for the position.

Abercrombie, however, has a “Look Policy” which requires all of its retail sales employees to dress a certain way and that policy explicitly prohibits employees from wearing “caps.”  Abercrombie decided that Elauf’s headdress would violate its Look Policy and it decided not to hire her.

Title VII of the 1964 Civil Rights Act requires employers to provide reasonable accommodations to sincerely held religious observances and practices.  Abercrombie maintained that it had no obligation to accommodate Elauf’s request to wear a headdress, because it had no actual knowledge that she sought to wear the headdress for religious purposes.

But the Supreme Court easily dispatched with that argument, finding that actual knowledge of an applicant’s need for a religious accommodation is not necessary to state a religious discrimination claim.  On the contrary, the Court found that “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.”  Hypothetically, if an employer thinks – but does not know – that an applicant who is an orthodox Jew would need to skip work on Saturdays, it can be found liable for Title VII without having actual knowledge of that need.  The Court suggested that a mere suspicion that an employee requires accommodation of a religious practice is enough to state a claim.

Most employers expected this result and, in fact, Abercrombie’s Look Policy had been called into question by numerous courts around the country, including courts in California. The fact that Antonin Scalia, arguably the most conservative justice,  wrote the opinion, however, signaled that this was an easy decision for the Court to reach.

Will this lead to a jump in the number of religious discrimination claims?  It likely will.  As we reported earlier, the American workforce is increasingly diverse and includes employees with religious practices that were largely unseen in the last decade or two.  If nothing else, the general unfamiliarity with the wide range of religions and practices today make the management of those practices more difficult for Human Resources professionals.

From a legal perspective, the focus on an employer’s suspicions, as opposed to its knowledge, makes it increasingly likely that claims involving religious practices will reach trial, and thus be very expensive to handle.  While knowledge or the lack thereof can usually be established with certainty, it seems likely that a court will allow a jury to decide whether an employer had a suspicion based on what its personnel saw and heard, even if they deny having one.

How should Human Resources professionals react to this decision?  For one thing, this decision makes clear that hiding from knowledge will not assist employers in dealing with religious issues in the workplace.  An HR professional who suspects that an employee will need an accommodation of her religious beliefs should be pro-active and deal with it before it becomes an issue.