Freedom of religion trumped an employer’s dress code as the U.S. Supreme Court ruled that Abercrombie & Fitch discriminated against a Muslim job applicant by refusing to hire her because she wore a head scarf.
The court’s decision in favor of Samantha Elauf, who wore the scarf to a job interview at an Abercrombie Kids store in 2008, clarifies employer liability for religious discrimination under Title VII.
Elauf did not bring her religion up during the interview, but Justice Antonin Scalia, writing for an 8-1 majority, said a job applicant can show disparate treatment “without first showing that an employer has ‘actual knowledge’ of the applicant’s need for an accommodation.”
“[T]he rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” he wrote.
The court also rejected Abercrombie’s argument that it could not be liable because it did not treat religious practices less favorably than similar secular practices.
“Title VII does not demand mere neutrality with regard to religious practices. Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual’ … because of such individual’s ‘religious observance and practice,’” Scalia said.
Michael Droke, a Seattle lawyer, told the Los Angeles Times that the decision “dramatically changes the standards that apply to employers because it removes the requirement that an employee or applicant request a religious accommodation, if the employer’s motive is later deemed a violation of Title VII.”
At the time of Elauf’s interview, Abercrombie had a standard “look policy” for its sales staff that did not include wearing a head scarf. She was turned away because managers feared her scarf would clash with the retailer’s image.
The U.S. Equal Employment Opportunity Commission sued on Elauf’s behalf. After a jury awarded her $20,000 in compensation, a federal appeals court affirmed the verdict, finding that Abercrombie did not have actual knowledge of a conflict between Elauf’s religious practice and a work rule.
“A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability,” Scalia wrote in reversing the lower court.