By Katie Graham
Yesterday, the United States Supreme Court ruled that actual knowledge of an employee’s need for religious accommodation is not required to support a Title VII discrimination claim.
In EEOC v. Abercrombie & Fitch Stores, Inc., a job applicant was denied employment because her headscarf conflicted with the store’s Look Policy. The store’s policy prohibits caps because they are “too informal for Abercrombie’s desired image.” The policy was neutral in that it prohibits all headwear—religious or otherwise.
The job applicant was never asked why she wore a headscarf, she did not volunteer the information, and she never told the employer she would need an accommodation. But the manager interviewing the employee “suspected” the headscarf was related to her faith, and the Supreme Court said that might be enough to establish motive. Perhaps if the hiring manager were unaware that head scarves could be worn for religious purposes, Abercrombie would be in the clear.
Employers may not find much comfort in the Supreme Court’s clarification that, arguably, the motive requirement is not met unless the employer “suspects” that the practice in question is a religious practice. The Supreme Court explains that the plaintiff must prove motive, and motive can be proven without actual knowledge. The converse is also true—just because an employer has actual knowledge of the need for a religious accommodation does not mean it forms the motive.
The Supreme Court declared that Title VII gives religious practices favored treatment because otherwise neutral policies, such as the Look Policy, must give way when there is a need for a religious accommodation. In other words, the Supreme Court interpreted Title VII as requiring something more than equal treatment in the context of religious disparate treatment claims.
The adage that for purposes of Title VII employers can treat all employees the same as long as the employer does not treat employees outside the protected class more favorably, doesn’t fit the mold for religious discrimination claims.
Of course, the Americans with Disabilities Act requires employers to make accommodations for disabilities under certain circumstances. However, it is distinguishable because it creates a cause of action for discrimination when the employer fails to make reasonable accommodations to known physical or mental limitations. The ADA is no longer as helpful of a guidepost for evaluating religious accommodation claims under Title VII, and employers may see an uptick in religious discrimination claims framed as failure to accommodate.
Justice Thomas, concurring in part and dissenting in part makes a good point: Title VII disparate treatment claims require intentional discrimination. It seems axiomatic that application of a neutral policy cannot constitute intentional discrimination—but the United States Supreme Court says that’s not the case. Perhaps in the instance of religious discrimination claims under Title VII, knowledge is not power.