U.S. Supreme Court Finds Abercrombie & Fitch’s Rejection of Muslim Applicant Unlawful

On June 1, 2015, the U.S. Supreme Court issued EEOC v. Abercrombie & Fitch Stores, Inc. finding that it was unlawful for the store to reject an otherwise qualified applicant because the applicant, a Muslim, wore a headscarf to the interview.

In Abercrombie, the Equal Employment Opportunity Commission (“EEOC”) brought an action on behalf of a Muslim job applicant against the clothing retailer Abercrombie & Fitch Stores, Inc. (“Abercrombie”) for religious discrimination, alleging Abercrombie failed to accommodate the applicant’s religious practice of wearing a headscarf.

During the hiring process, the Muslim applicant received a rating that qualified her to be hired by Abercrombie, but the assistant store manager observed that the applicant was wearing a headscarf during the interview. The assistant store manager was concerned that the applicant’s headscarf conflicted with Abercrombie’s “Look” Policy, which prohibited employees from wearing caps. Even though the applicant never notified the assistant store manager that the applicant wanted to be accommodated so as to allow her to wear a headscarf if hired, the assistant store manager sought guidance from the district manager seeking to clarify whether a headscarf was a “cap.” The district manager notified the assistant store manager that the headscarf would violate Abercrombie’s “Look” Policy and not to hire the applicant.

The lower circuit court held that an employer cannot be held liable for failing to accommodate a religious practice until the applicant (or employee) provides the employer with “actual knowledge” of the need for an accommodation. However, the United Supreme Court reversed finding that a job applicant seeking to prove a disparate treatment claim need only show that the need for a religious accommodation was a motivating factor in the prospective employer’s adverse decision. Under the Abercrombie decision, an applicant or employee need not show that the employer actually knew that the applicant’s practice was a religious practice that required an accommodation.

In response to this new decision, employers should understand and recognize that employers must reasonably accommodate the religious beliefs and practices of employees or applicants unless doing so would impose an undue hardship upon the employer, even if that means making exceptions to the employer’s otherwise facially neutral policies.

In addition, employers should not wait for a request for an accommodation from applicants or employees when the company has reason to believe that making a certain decision will implicate the applicant or employee’s religious practices. Under Abercrombie, an employer’s defense that the applicant/employee never requested a religious accommodation will likely not suffice.
For more information concerning this or other issues affecting labor and employment, please contact:

Kimberly Sarff
Peoria, Illinois
Direct:  309-636-7225
Fax:  309-674-6503
Email:  ksarff@quinnjohnson.com

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Copyright © 2015 Kimberly A. Sarff, Esq., Quinn Johnston Henderson Pretorius Cerulo