On June 1st, the Supreme Court decided Equal Employment Opportunity Commission (EEOC) v. Abercrombie & Fitch and held that companies cannot make employment decisions based on workplace rules if those rules are contrary to the religious beliefs of an employee or applicant.

In 2008 in Tulsa, Oklahoma, the clothing store Abercrombie & Fitch declined to hire a seventeen year old applicant who interviewed for the job while wearing a headscarf. The applicant never told the interviewer that she wore the headscarf pursuant to her Muslim faith, nor did the interviewer ask. He decided, however, not to hire her because the scarf violated A&F’s “look policy,” which at the time prohibited all sales employees from wearing caps or other “headwear.” The EEOC filed a lawsuit on her behalf, and in its decision on June 1, the Supreme Court found that this violated Title VII of the Civil Rights Act of 1964.

Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin, and requires employers to provide reasonable religious accommodations when the accommodation does not place any undue hardship on the business. The issue addressed in EEOC v. A&F was whether an employer was responsible for providing an accommodation even when the employee (or prospective employee) did not ask for the accommodation. The Supreme Court held the employer is in fact responsible if it has any inclination that the accommodation may be necessary.

Under this holding, an applicant or employee arguing that an employment decision violates Title VII must merely show that his or her need for an accommodation was a motivating factor in the employer’s decision. An employer trying to avoid an accommodation violates Title VII even if he has no more than a “hunch” that the accommodation is needed. Under this rule, even employment policies that are neutral about religion may violate federal law if the neutral rule has a disparate impact on employees of certain faiths. Title VII gives religious practices favored treatment, so having a neutral policy is not enough; policies must give way to the need for an accommodation of an applicant’s religious practices unless the employer demonstrates it is unable to make the accommodation without undue hardship.
Essentially, an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. In making those decisions, the employer does not need to have any affirmative knowledge of the need for the accommodation.


In the wake of this decision, your company should examine all policies that could potentially implicate religious-based discrimination, including policies that appear to be neutral. This holding in this case leaves very little wiggle-room for employers; because applicants and employees do not have to make a specific request for a religious accommodation to obtain relief under Title VII, your company should be pro-active in ascertaining whether an employee requires an accommodation. If someone making an employment decision has even the slightest suspicion that an applicant or employee may require an accommodation, ask! For example, Justice Alito points out that Abercrombie & Fitch could have prevented this lawsuit merely by informing the applicant about the company policy prohibiting head coverings, and asking the applicant about her ability to comply with that policy.

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.