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High Court Reaffirms Right of Employees to Religious Accommodations

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Can an employee sue for religious discrimination due to an employer’s failure to accommodate religious practices when the need for the accommodation is obvious, but the employee did not explicitly request one? Yes, according to an 8-1 decision yesterday from the Supreme Court.

Back in October, we wrote about a pending Supreme Court case involving a Muslim woman denied employment by Abercrombie & Fitch because she wore a religious headscarf. Yesterday, the Court decided the case, holding that employers cannot refuse to hire applicants based on an assumption that they would require an accommodation due to their respective religious practices. The decision should help protect employees from having to choose between their jobs and their religious beliefs. The case is U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.

The Facts of the Abercrombie Case

Supreme CourtAbercrombie & Fitch is not a stranger to employment discrimination lawsuits. As part of its branding, the store has a “Look Policy”—basically a dress code—requiring employees to project a certain image. The Look Policy, and its hiring practices generally, have repeatedly been the subject of employment discrimination cases over the past several years.

Samantha Elauf is a practicing Muslim who wears a religious headscarf, known as a “hijab.” When she applied for employment at an Abercrombie score, the interviewing manager gave her a rating that qualified her for employment. Concerned about whether the hijab would violate the Look Policy and its ban on “caps,” the manager inquired with her district manager before hiring Elauf. She told the district manager that she believed Elauf wore the headscarf as part of her religious practice, although Elauf did not explicitly say so. The district manager informed the interviewing manager that the headscarf did not comply with the Look Policy, and instructed her not to hire Elauf.

The Equal Employment Opportunity Commission then brought suit against Abercrombie, claiming its refusal to hire Elauf violated federal law prohibiting employment discrimination on the basis of religion. It was one of several similar cases recently brought against Abercrombie due to its Look Policy and other employment practices. Yesterday, the Supreme Court ruled against Abercrombie.

Federal Law on Religious Discrimination in Employment

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of religion. The term “religion” is defined under Title VII to include “all aspects of religious observance and practice . . . unless an employer demonstrates that he is unable to reasonably accommodate [the employee] without undue hardship.” 42 U.S.C. § 2000e(j). In other words, employers cannot refuse to grant accommodations to employees, or refuse to hire applicants so as to avoid accommodating their religious practices, if the practices could be accommodated without undue hardship. See 42 U.S.C. § 2000e-2(a).

Here, Abercrombie argued to the Court that it cannot be held to have violated this prohibition unless the employee explicitly asked for the accommodation. The Court soundly rejected that argument. Pointing out that the ban on religious discrimination focuses on the employer’s motivations, it held that employers cannot make an employee’s or applicant’s religious practice “confirmed or otherwise, a factor in employment decisions.”

Of equal importance, the Court also rejected Abercrombie’s argument that the application of its Look Policy in this case was non-discriminatory because it applies to all sorts of headwear, religious or not. The Court held that while employers can surely have a no-headwear policy in general, that policy must give way when necessary to provide a reasonable accommodation of an employee’s or applicant’s religious practices: “Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”

Why This Case Matters

When delivering the Court’s Opinion yesterday, Justice Scalia described the case as “really easy.” I agree.

I don’t view this case as breaking new ground as much as I view it reaffirming a core principle of employment discrimination law: employers cannot refuse to hire people, or fire them, in order to avoid granting a reasonable accommodation of their religious beliefs and practices. The existence of a pre-existing policy—or a belief that it would be a minor inconvenience—is not a sufficient reason to refuse to grant a religious accommodation, to refuse to hire an employee, or to fire an employee. That is not a new concept under the law, but it is an important one. And it is one about which employers and employees alike sometimes need reminding.

Let’s consider a practical example offered in the Court’s opinion. The Court pointed out that an employer would engage in unlawful employment discrimination by refusing to hire an orthodox Jew because it did not want to allow him or her not to work on the Sabbath as an accommodation. Certainly, there might be jobs where it would pose an undue hardship for the employee not to work the Sabbath. But as a general matter, the employer cannot merely cite to a pre-existing work policy and refuse to hire the employee or to grant the accommodation without further analysis. The same logic applies to other types of religious accommodations as well.

Religious discrimination cases are not the most frequent type of employment discrimination cases we see. In fact, it is statistically one of the rarest types of discrimination cases. Still, it does happen. If you believe you have been the victim of religious discrimination, or any other type of employment discrimination, contact the Cleveland employment law attorneys at Bolek Besser Glesius LLC today for a free consultation.

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About Matthew Besser

Matthew D. Besser defends the rights of individuals in employment discrimination, civil rights, and constitutional law cases.

Matt is a former federal appellate law clerk, and an adjunct law professor at Case Western Reserve University. He is also a frequently invited speaker on an array of legal topics. Recognized for his accomplishments in the legal field, Matt holds the prestigious Martindale-Hubbell “AV Preeminent”® rating. Twice, U.S. News and World Reports has named him to its list of Cleveland employment law “Best Lawyers.” And Super Lawyers Magazine has named him a “Super Lawyer” for employment law in Cleveland four times. Twice before that, the Magazine named him one of its “Rising Stars.”

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