July 2015 Bar Bulletin
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July 2015 Bar Bulletin

EEOC v. Abercrombie & Fitch: What You Don't Know Can Hurt You

By Patrick Pearce


On June 1, the Supreme Court issued its decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.1 ("Abercrombie"). The opinion was authored by Justice Antonin Scalia, who was joined by six other justices. Attorneys for both employers and employees should note the Court's guidance on establishing support for religious discrimination claims.

In Abercrombie, the dispute arose when Samantha Elauf, a practicing Muslim, applied for a position in an Oklahoma store.2 The assistant manager who interviewed Elauf found her to be qualified, but observed that she wore a headscarf. The headscarf was a concern for the assistant manager as the company had an existing "Look Policy" governing employee dress that prohibited wearing any "caps."3 The term "caps" was not defined by the policy.

The assistant manager sought guidance from the store manager as to whether the headscarf violated the policy and the prohibition on wearing "caps." The assistant manager advised the store manager that she believed Elauf wore the headscarf for religious reasons. The store manager assessed the issue and concluded the headscarf violated the Look Policy. As a result, the store manager directed that the applicant not be hired.4

The EEOC brought suit on Elauf's behalf, arguing that the store's refusal to hire Elauf violated protections for religious practices provided under 42 U.S.C. 2000e. The U.S. District Court granted the EEOC's motion for summary judgment on liability and awarded $20,000 following trial on damages.5

The Tenth Circuit reversed and ordered summary judgment for Abercrombie & Fitch. In reaching its rulings, the Tenth Circuit reasoned that ordinarily employers do not face liability under 42 U.S.C. 2000e for failure to accommodate a religious practice without the employee or applicant first providing the employer with actual knowledge of the need for accommodation.6

The Supreme Court granted certiorari and reversed. In reaching its conclusion, the Court focused on the meaning and application of the term "because of" as used in 42 U.S.C. 2000e-2(a), the provision of Title VII prohibiting discrimination against individuals, employees and job applicants "because of" religion.

The company argued that a claimant cannot show disparate treatment without first showing that an employer has "actual knowledge" of the need for an accommodation. The Court rejected the argument, and instead ruled that the applicant need only show that the need for accommodation was a motivating factor in the employer's decision.7

The Court noted that 42 U.S.C. 2000e-2(a)(1) does not impose a knowledge requirement on the employer like those found in other statutes such as the Americans with Disabilities Act of 1990.8 Instead of reading an actual knowledge requirement into Title VII, Justice Scalia observed that the Court would "construe Title VII's silence as exactly that: silence."9

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