How Abercrombie and Fitch Changed Religious Discrimination in the U.S.

Categories: blog

In the highly publicized EEOC v Abercrombie & Fitch Stores, Inc., the Supreme Court of the United States made it clear that employers must be very careful when making hiring decisions that can potentially involve the need for a religious accommodation. 

In the Abercrombie case, a Muslim applicant was denied a position with the company because she wore a headscarf, or “hijab.”  Although the interviewing manager had determined that the applicant was qualified for the position, she took concern to the headscarf because the company had a policy which governed its employee’s work attire.  This internal policy prohibited any type of “caps” being worn because the company considers them too informal for the “look” it chooses to display.

When asking her boss for guidance on the hiring decision, the interviewing manager explained her belief that the applicant wore the headscarf for religious reasons.  The headscarf that the applicant wore was in fact for religious reasons, but she never actually disclosed this fact to the company.  Sticking to its broad policy, the company denied the applicant the position because of the headscarf, even though it suspected the headscarf was worn for religious reasons.  The applicant sued for religious discrimination, but the company argued that it could not intentionally discriminate if it was never informed of the need for a religious accommodation.

Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it is able to accommodate without undue hardship.  The question before the Supreme Court here was whether this prohibition applies only where an applicant has informed the employer of the need for an accommodation.  In other words, can employers be held liable for hiring decisions that considered an employee’s religion, even if the employee never actually said anything about their religion?  The answer is yes. 

Staying consistent with Title VII’s “motivating factor” interpretation, the Court decided that an employer violates the law if it factored an applicant’s religion into its hiring decision, whether or not it had the actual knowledge of a religious accommodation being required.  To the Supreme Court, the actual knowledge is irrelevant – what matters is the employer’s motivation.

The bottom line to this case is that an applicant does not have to ask a potential employer for a religious accommodation in order to have a discrimination claim.  Instead, if an employer suspects that a religious accommodation may be required, and that suspicion gets factored into its hiring decision, it will be held accountable for religious discrimination.  This scenario will be analyzed by the courts like any other claim of religious discrimination.

It is important for employers to understand the implications of this ruling, so that unnecessary liability can be avoided during the hiring process.  At Wilson McCoy, we work with employers and employees in handling religious accommodation matters.  If you have to make a hiring decision (or a decision with a current employee) and are not sure how this case impacts you, please contact us at (407) 803-5400 or info@wilsonmccoylaw.com.  In similar fashion, if you believe you have been illegally denied a job because of your religion (or have not been properly accommodated for your religious belief at your current job), call the number above.  Our experienced attorneys can help you.