London, 15 June 2015
On 1 June 2015, the US Supreme Court issued an opinion on the case Equal Employment Opportunity Commission, Petitioner v Abercrombie & Fitch Stores, Inc. stating that employers have an affirmative duty to accommodate an applicant’s religious practice, even if the applicant has not informed the employer of such need.
In a judgment that rightly outlaws discriminatory motives, whether based on knowledge or suspicion, the Court confirmed that the applicant needs only to show that her need for an accommodation was a motivating factor in an employment decision.
Samantha Elauf, a practicing Muslim, wears a headscarf in her everyday life. She attended a job interview at an Abercrombie & Fitch store, and was rated well for her skills. However, she was not hired as her headscarf was seen as incompatible with the store’s headwear-prohibiting “Look Policy”. The Equal Employment Opportunity Commission sued Abercrombie & Fitch Inc. on Elauf’s behalf alleging that she had been discriminated against on the basis of her religious practice.
Abercrombie argued that, while its staff observed that Elauf wore a headscarf at her interview, it did not have the sufficient knowledge of Elauf’s religious practice to intentionally discriminate against her – she had not told them. It stated that the mere existence of a neutral no-headwear policy, which applied to both religious and non-religious headwear alike, could not amount to direct discrimination.
The Supreme Court held with a majority of eight to one that the applicant does not need to inform the employer of her religious practice in order for the prohibition of discrimination to apply. What matters is the motive behind the employer’s decision – whether the decision was taken to avoid accommodation of an applicant’s religious practice, regardless of whether the employer knew, or merely suspected, there was such need. The Court also highlighted that instead of treating applicants identically, employers have an affirmative duty to accommodate applicants’ religious practices.
The Equal Rights Trust welcomes the opinion of the Supreme Court which makes it clear that employers must ensure their policies are applied in an inclusive manner. The Court has rightly placed emphasis on the motive of the employer rather than on the knowledge it holds when making a decision which fails to accommodate religious practice. The Trust particularly welcomes evidence that the Court is adopting a substantive approach to equality as it is such an approach which underpins the Court’s progressive interpretation of Title VII “disparate-treatment” discrimination.
Dimitrina Petrova, Executive Director of the Equal Rights Trust, commented:
“This is an important decision as it confirms that an employer cannot discriminate against applicants because of their religious practice by referring only to a lack of explicit knowledge of the practice. What matters in the finding of disparate treatment discrimination is the causal link between the treatment and the protected characteristic. Moreover, it is significant that the Court reiterated that achieving full equality requires that employers take affirmative steps to make sure that otherwise neutral policies give way to a need for an accommodation for a protected group.”
To read the Equal Rights Trust’s case summary click here