Supremes Say Abercrombie Not So Hip

By John Alan Doran

The U.S. Supreme Court just issued its much-awaited religious discrimination decision in EEOC v. Abercrombie & Fitch, 575 U.S. ___ (June 1, 2015) (No. 14-86). Samantha Elauf applied for a job with A&F and was denied the job because she wears a headscarf or “hijab” as part of her faith. A&F deemed all headwear a violation of its “look policy”. The EEOC obtained summary judgment at the trial court level, but the 10th Circuit reversed, holding that, to later claim failure to accommodate, Elauf had to have actually requested religious accommodation.

In an 8-1 decision, the Supreme Court held that Title VII does not give employees an affirmative duty to request religious accommodation. According to Justice Scalia, the 10th Circuit had confused knowing (e.g., did the employer know a religious accommodation was necessary) with intending (e.g., did the employer intend to reject her application because a religious accommodation might be necessary). According to the Court, knowledge is mostly irrelevant under Title VII.

It is critically important to note that, in this case, A&F had some knowledge that Elauf’s hijab was a religious practice. The Court states that its decision does not address whether an employer violates Title VII by taking action against an employee because he or she engages in some practice, if the employer has no idea that the practice is religious. The case only stands for the idea that an employer may not stick its head in the sand to avoid accommodating a religious practice when the employer “at least suspects” that the employee’s practice is, in fact, religious in nature.