Alan Schorr’s Employment Case of the Week ending June 12. 2015

E.E.O.C. v. Abercrombie & Fitch Stores, Inc., ___ U.S. ___; 2015 U.S. LEXIS 3718 ( U.S. Supreme Court, Jun 1, 2015)

Case of the Week returns from its sabbatical with a case that I wrote about when it was decided by the 10th Circuit.  On October 4, 2013, I wrote about the Appellate decision:

In a decision that has left me scratching my head (and whatever hair is left on it), the 10th Circuit reversed a District Court grant of Summary Judgment on a religious accommodation case in favor of the EEOC, and instead granted summary judgment in favor of Abercrombie & Fitch. In E.E.O.C. v. Abercrombie & Fitch Stores, Inc., the Court of Appeals held that religious accommodations do not need to be granted, even when the religious circumstances are obvious, unless the employee expressly asks for the accommodation.

This week the United States Supreme Court reversed, holding that “to prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.”

The EEOC had sued on behalf of Samantha Elauf, a practicing Muslim who wore a headscarf in accordance with her practice of her religion. After an interview for a sales position at Abercrombie Kids, Heather Cooke, an assistant manager, found her to be a qualified candidate, but had concerns that Ms. Elauf’s headscarf would violate Abercrombie’s “Look Policy”, which banned employees from wearing “caps”. Ms. Cooke did not ask Ms. Elauf about her headscarf or her religion and did not mention that it could violate the Look Policy. Randall Johnson, the district manager determined that the headscarf violated the store’s Look Policy and instructed the assistant manager not to hire Ms. Elauf. At no time was Ms. Elauf informed or instructed that her headscarf would be an issue.

The Northern District Court of Oklahoma initially granted summary judgment to the EEOC on liability and a damages trial resulted in a $20,000 award. Abercrombie appealed to the Tenth Circuit, which reversed the District Court and granted summary judgment to Abercrombie on the grounds that Elauf never specifically requested an accommodation, and that Abercrombie therefore did not have “actual knowledge” of Ms. Elauf’s need for an accommodation. The EEOC appealed to the Supreme Court, and the Supreme Court granted certiori on the issue of whether a job applicant or employee needed to give notice of the need for an accommodation or whether the need for accommodation just needed to be part of the employer’s reason for taking adverse action against the employee or applicant.

The Supreme Court held that it was not necessary to impose a notice standard upon an applicant, so long as the applicant can demonstrate that the protected characteristic was a “motivating factor in the employer’s decision”, regardless of whether the employer had knowledge that the employee would require an accommodation.  In other words, although no one ever asked Ms. Elauf whether she would need to wear the headscarf, and Ms. Elauf never advised that she would need to wear the headscarf, it was enough that the employer refused to hire her because they believed that she might require the accommodation.

The Supreme Court did get this right, but I am concerned that this may be a narrow decision.  The Court was not clear as to whether this reasonable accommodation standard would apply with equal weight to disability accommodation cases brought under the Americans with Disabilities Act.  The Court hinted that it believed that religious accommodations warranted a higher standard than other types of accommodations.  The Court expressly found that Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.  So it will interesting to see if this case translates into broader protection for disabilities accommodations.  But for now this is a significant victory for those employees requiring religious accommodations.