On June 1, 2015, in an 8-1 decision, the United States Supreme Court reversed the Tenth Circuit Court of Appeal’s decision in favor of Abercrombie & Fitch in EEOC v. Abercrombie & Fitch Stores, Inc. (PDF) — a case involving a failure-to-accommodate religious discrimination claim under Title VII of the Civil Rights Act of 1964.
In 2008, Samantha Elauf (pictured on right) was 17 years old when she applied for a job as a “floor model” (i.e., sales associate) at the Abercrombie & Fitch Kids store in her local mall in Oklahoma. She is a practicing Muslim and wears a headscarf (also known as a “hijab”) daily. Ms. Elauf wore Abercrombie-like clothes (jeans and a t-shirt) and a black headscarf to her interview.
The store’s assistant manager interviewed Ms. Elauf, liked her, and recommended that she be hired, giving her interview ratings of 2 out of 3 in all of Abercrombie’s core competencies of “outgoing and promotes diversity,” “sophistication and aspiration,” and “appearance and sense of style.” However, the assistant store manager was concerned that Ms. Elauf’s headscarf may violate the company’s Look Policy. Abercrombie had a written Look Policy that prohibited, among other things, “models” from wearing “caps” or black clothing. Importantly, during the interview, there was no discussion of Ms. Elauf’s religion or headscarf, nor was there any discussion of the “no caps” or “no black clothing” specifics of the Look Policy.
The assistant store manager assumed Ms. Elauf wore the headscarf due to her Muslim religious beliefs and, consistent with company policy, sought assistance from her district manager with respect to the Look Policy. It is unclear why the district manager did not contact Abercrombie’s Human Resources department or Abercrombie’s legal counsel for guidance. Instead, he recommended that the assistant store manager not hire Ms. Elauf because he interpreted Ms. Elauf’s headscarf to violate the Look Policy’s prohibition on “caps.” He also recommended that the assistant store manager change Ms. Elauf’s interview rating with respect to “appearance and sense of style” from a 2 to a 1, thereby disqualifying her from employment. Per the district manager’s directive, the assistant store manager threw away her original interview rating sheet and completed a new sheet with the lower rating. After changing her interview rating, the assistant store manager did not offer Ms. Elauf a job with Abercrombie. One of Ms. Elauf’s friends, who also worked at the Abercrombie Kids store, told her that she was not hired because she wore a headscarf.
Ms. Elauf thereafter filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). The EEOC found probable cause for the Charge, decided to litigate the claim (a relatively rare occurrence), and filed a lawsuit in federal court against Abercrombie on behalf of Ms. Elauf. On July 13, 2011, the District Court for the Northern District of Oklahoma granted summary judgment in favor of the EEOC and Ms. Elauf on the issue of liability, and the case went before a jury to decide damages. After a trial, the jury awarded Ms. Elauf $20,000 in compensatory damages.
Abercrombie appealed the district court’s grant of summary judgment to the Tenth Circuit Court of Appeals, which, on October 1, 2013, reversed the entry of judgment in favor of the EEOC and Ms. Elauf and reversed the denial of summary judgment to be in favor of Abercrombie. The EEOC and Ms. Elauf then appealed the Tenth Circuit’s decision to the United States Supreme Court.
The U.S. Supreme Court reversed the Tenth Circuit Court of Appeals, and sent the case back to the trial court to determine whether Ms. Elauf’s religion was a “motivating factor” in the decision not to offer her employment.
Holding & Key Take-Aways
In today’s opinion (PDF), the U.S. Supreme Court held that Title VII requires only a showing that an employee’s or applicant’s protected status (here, religion), whether confirmed or otherwise, be a “motivating factor” in an employer’s decision not to accommodate, rejecting the Tenth Circuit’s holding that an employer must have “actual knowledge” of the need for an accommodation before liability attaches. Ms. Elauf’s case was reversed and remanded back to the Tenth Circuit for further consideration. In its earlier decision, the Tenth Circuit attempted to create a bright line test involving “actual knowledge” in failure-to-accommodate Title VII cases. But, it seems that the facts of this case and the Tenth Circuit’s approach were much like trying to fit a square peg in a round hole.
Take-Away #1: Title VII Prohibits Employment Decisions “Motivated” by Discriminatory Animus.
This, to me, is a very common sense take-away. In this case, it was undisputed that the interviewing manager assumed Ms. Elauf was Muslim and would need to wear her headscarf to work. Thus, even though Ms. Elauf did not expressly state her religion or request an accommodation to allow her to wear a headscarf, there was evidence of the potential need to accommodate based on religion to allow this case to survive summary judgment. Indeed, the assistant store manager contacted her district manager for the very purpose of discussing the applicant’s headscarf, her underlying belief that Ms. Elauf wore the headscarf due to her Muslim religion, and whether it conflicted with Abercrombie’s Look Policy.
Reversing the Tenth Circuit’s requirement that an employer have “actual knowledge” of a need for an accommodation, the majority of the U.S. Supreme Court instead held that Title VII prohibits employment decisions “motivated” by a desire not to accommodate, and contrasted Title VII claims with ADA disability discrimination claims involving an employer’s failure to reasonably accommodate an applicant’s known physical or mental limitations. The Court wrote: “[m]otive and knowledge are separate concepts;” and, Title VII contains no knowledge requirement.
Take-Away #2: Religion Must Be Given Favored Treatment in Failure-to-Accommodate Cases.
This take-away is not so common sense to me. Specifically, the Court also held that, because Congress defined “religion” in Title VII to “include all aspects of religious observance and practice, as well as belief,” religious practices must therefore be given “favored” treatment in failure-to-accommodate cases. The “favored” treatment involves allowing a Title VII failure-to-accommodate religious discrimination claim based on a company policy to be brought as an individual disparate-treatment claim versus a disparate-impact claim. Abercrombie argued that the Look Policy was facially neutral since it theoretically prohibited all headwear, regardless of religion, and thus, the EEOC should have brought a disparate-impact claim instead of a disparate-treatment claim. Justice Thomas, who dissented to the majority’s opinion, agreed with Abercrombie on this point. He stated that there are only 2 causes of action under Title VII – (1) a disparate-treatment, or intentional discrimination, claim and (2) a disparate-impact claim. Because the EEOC did not bring a disparate-impact claim in this case, Justice Thomas would affirm the judgment of the Tenth Circuit.
Take-Away #3: The Case Is Not Over.
Since the “motivations” of Abercrombie’s management (district manager and/or assistant store manager) are central to whether Abercrombie unlawfully discriminated against Ms. Elauf in this Title VII failure-to-accommodate religious discrimination case, further proceedings are necessary to determine whether Abercrombie’s decision not to hire Ms. Elauf was motivated, even in part, by her religious practice and the desire not to accommodate such practice. Because individual “motivations” are inherently subjective and generally hinge on a credibility determination, this case will likely need to go to a trial on the issue of liability (unless it settles of course, which it probably should under these facts and with this holding).
What Can Employers Learn from this Decision?
Looking at the facts and holding of this decision, employers are wise to:
- TRAIN, RE-TRAIN and TRAIN AGAIN all managers and supervisors on the company’s policies and procedures, including compliance with all applicable federal, state and local anti-discrimination laws. Abercrombie apparently had a policy that if there are issues or questions about the Look Policy or if an employee requests a religious accommodation, the manager should contact the Human Resources Department and/or their direct supervisor, but only the HR Department could grant an accommodation. This process unfortunately did not happen in this case. Managers and supervisors are a company’s front line when it comes to both exposing and protecting a company from employment claims, but managers and supervisors are not usually HR specialists or employment lawyers. They need periodic reminders about the right steps to take and clear directives about who to talk to when certain issues arise.
- NEVER MAKE ASSUMPTIONS WHEN MAKING EMPLOYMENT DECISIONS involving individuals and protected classes. Abercrombie claimed that it trains store managers “never to assume anything about anyone” in a job interview, and not to ask applicants about religion, yet it had two levels of management that made assumptions that got it into trouble. When protected classes are involved (race, gender, age, sexual orientation, religion, disability, national origin, etc.), any assumptions — whether good or bad, or right or wrong — can be an employer’s worst enemy. Go back to number 1 above.
- BE CONSISTENT. Abercrombie’s Human Resources Department had previously approved numerous exceptions to its Look Policy. In particular, the evidence showed that since 2001, it had granted 8 or 9 headscarf exceptions, and various other exceptions for religious reasons, including allowing facial hair, bracelets, long skirts, and yarmulkes. Inconsistently applied policies and procedures give rise to employment claims and make Plaintiff’s lawyers happy. Go back to number 1 above.
- Don’t be afraid to ENGAGE IN THE INTERACTIVE PROCESS when presented with a scenario involving a potential protected class and a conflict with company policy. Does this mean that employers should just ask all applicants who wear headscarves or religious garb about their religion during an interview? No. How about we just bury our heads in the sand and ignore protected class issues altogether? Still no. Similar to the standard question on most job applications regarding whether an applicant can perform all of the essential functions of a job with or without reasonable accommodation, when dealing with strict dress code policies that may impact religious beliefs, an employer should present the policy in question to the applicant and find out whether they are able to comply with the policy with or without accommodation. This allows the interactive dialogue to take place between the applicant and prospective employer, so that any protected status issues can be dealt with appropriately.
- If a company really needs a strict dress code policy that does not allow for any accommodations (although not recommended by this lawyer), CONDUCT CONCRETE STUDIES OR PROVIDE SPECIFIC EXAMPLES before implementing the policy to show that alterations or accommodations will negatively affect the brand or cause an undue burden. Abercrombie only had its expert’s opinion, who was hired after the lawsuit was filed, to testify that exceptions to its Look Policy would negatively impact its multi-million dollar brand and sales. Everybody knows – judges in particular – that experts are hired guns, and without more, an expert opinion alone is not going to prove up actual damage to a brand or a decrease in sales to justify a strict, no-accommodation policy.
- Finally, if questions arise, BE PROACTIVE AND TALK WITH HUMAN RESOURCES OR EMPLOYMENT COUNSEL. HR folks really do know a thing or two. One can only wonder if Abercrombie’s HR department had just been consulted before any hiring decision was made, then perhaps Abercrombie and the EEOC (funded by taxpayers) might have saved hundreds of thousands of dollars in attorney’s fees, notwithstanding 7+ years of litigation stress for everyone involved.