On Monday, June 1, the U.S. Supreme Court ruled in favor of the Equal Employment Opportunity Commission (EEOC) and against Abercrombie & Fitch Stores Inc. in a religious discrimination lawsuit involving a Muslim job applicant at its Tulsa store. In some ways, the Supreme Court’s decision may have the unintended result of causing some employers to ask applicants and employees about their religious beliefs or trigger unfortunate workplace stereotyping. 
Religious discrimination
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of religion or religious practices. Unlike some other employment discrimination laws that require only workplace neutrality by an employer—i.e., treating all employees the same—Title VII affords religion “favored treatment.”
The law affirmatively obligates employers to accommodate religious practices that don’t impose an undue hardship. An applicant’s religious practices can’t be a motivating factor in the employer’s hiring decision. For example, an employer shouldn’t reject a job candidate based on its desire to avoid the need to accommodate her religious practices.
Abercrombie rejects Tulsa applicant
Abercrombie subscribed to a “look policy” for its employees that was aimed at projecting the company’s desired image. The look policy prohibited employees from wearing “caps.” Samantha Elauf, a practicing Muslim, wore her head scarf when she applied for a position at Abercrombie’s Woodland Hills Mall store in Tulsa. Assistant manager Heather Cooke interviewed Elauf and rated her as qualified. During the interview, they did not discuss the head scarf.
When Cooke informed district manager Randall Johnson that she believed Elauf wore the head scarf based on her faith, Johnson concluded the head scarf violated Abercrombie’s look policy and directed Cooke not to hire her. Based on Abercrombie’s failure to hire Elauf, the EEOC filed a religious discrimination lawsuit against the employer on her behalf. After the agency filed its lawsuit, Abercrombie began an overhaul of its look policy.
Supreme Court weighs in
Although Cooke and Johnson may have assumed as much, Abercrombie emphasized it didn’t have actual knowledge that Elauf wore her head scarf for religious purposes and didn’t have actual knowledge that she would need an accommodation permitting her to wear it in violation of the store’s look policy. Nevertheless, the Supreme Court found against Abercrombie, noting that Title VII’s religious discrimination provision doesn’t include an actual knowledge requirement.
According to the court, an employer violates the antidiscrimination law when an applicant’s religion or religious practice is a factor in a hiring decision, even if the employer has only a belief or suspicion about the need for accommodation. In this case, Cooke and Johnson’s unconfirmed assumption that Elauf wore her headscarf as a religious practice, followed by a hiring decision based on that assumption, was enough to hold Abercrombie liable for religious discrimination.
Lessons from this case
Here are some of the lessons we can learn from this case:
- You are prohibited from denying employment opportunities to an applicant or employee on the basis of her confirmed or suspected religious beliefs or practices.
- You shouldn’t ask applicants about religious beliefs during the interview process or assume, based on appearance, that an applicant has certain religious beliefs or requirements.
- You may explain to all applicants the job requirements—e.g., the work schedule—and ask if they can meet those requirements.
- If an applicant or employee requests an accommodation, you should engage in an interactive process to determine what accommodation is needed and the effect it will have on the business.
- Reasonable accommodations should be made if they won’t create an undue hardship.
- You may be required to accommodate dress and grooming habits based on a religious practice or belief unless you have a policy against the dress or grooming habits that is justified by a business necessity. For example, you aren’t required to accommodate head scarves or long garments in an industrial plant where loose clothing may get caught in moving machinery.
Charlie Plumb is an attorney with McAfee Taft, practicing in the firm’s Tulsa, Oklahoma, office. He may be contacted at charlie.plumb@mcafeetaft.com.