Supreme Court rules against Abercrombie's "Look Policy" in case over Muslim headscarf

Published June 1st, 2015 -  - 06.01.15


Over three months ago, the Supreme Court heard oral argument in the case of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.  The issue was whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant because of religion without actual knowledge that a religious accommodation is needed – that is to say, without notice from the applicant.

Today, the Court decided 8-to-1 that an applicant need not show that the employer had actual knowledge of the potential employee’s need for accommodation to prevail on a disparate-treatment claim.  Rather, the Court held, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

Samantha Elauf, an observant Muslim, wears a headscarf.  She applied for a position at an Abercrombie store and interviewed at the retailer while wearing one.  But Abercrombie’s “Look Policy” prohibits all headwear.  Accordingly, the clothing chain did not hire Elauf because her headscarf conflicted with the store’s employment policy.

Title VII prohibits disparate treatment because of an individual’s religion or religious practices.  Unless an employer demonstrates that it cannot reasonably accommodate a religious observance without undue hardship, the employer cannot refuse to hire an applicant.

Abercrombie argued that no disparate treatment had occurred because Elauf never informed the retailer that she required a religious accommodation.  Writing for the Court, Justice Antonin Scalia dismissed Abercrombie’s argument as a misinterpretation of Title VII.  The statute, he emphasized, prohibits discriminatory motive.  Thus, as a rule, an employer violates Title VII every time an applicant’s religious practice is a motivating factor in an employment decision regardless of whether the religious observance is confirmed or not.

The Court was similarly unpersuaded by the Tenth Circuit’s reading of Title VII.  Below, the Tenth Circuit granted summary judgment in favor of the clothing chain because Elauf failed to demonstrate that a conflict existed between her religious practice and Abercrombie’s “Look Policy.”  Since Elauf failed to raise a religious conflict, the court argued, Title VII’s duty to reasonably accommodate was never triggered.

Justice Scalia found this reading of the statute untenable.  “The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result.”  Having actual knowledge of an applicant’s religious practices “may make it easier to infer motive,” Scalia noted, but it “is not a necessary condition of liability.”

Concurring in the judgment, Justice Samuel Alito cited his own reasons for overturning the Tenth Circuit.  The appeals court erred, he said, in interpreting Title VII to require notice, and in granting summary judgment, but not in requiring knowledge.  Alito would have held that Title VII requires “proof that Abercrombie knew that Elauf wore the headscarf for a religious reason.”

In dissent, Justice Clarence Thomas affirmed his adherence to the proposition that the “[m]ere application of a neutral policy cannot constitute ‘intentional discrimination.’”  On that point, however, the majority felt differently.

Justice Scalia concluded the decision by emphasizing that Title VII not only prohibits treating religious practices less favorably than similar secular practices, but affirmatively obligates employers to provide religious observers with favored treatment.  In other words, Justice Scalia argued, “[t]itle VII requires otherwise-neutral policies to give way to the need for an accommodation.”

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