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Supreme Court Finds Disparate Motive as Standard in Title VII Claim

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On June 1, 2015, the Supreme Court of the United States (SCOTUS) issued a much-anticipated ruling on a Title VII religious bias claim brought by a Muslim female job applicant who wore a scarf to an interview and was denied employment. In an 8-1 decision, SCOTUS reversed and remanded back to the 10th Circuit its decision in favor of the employer, ruling that the an applicant with a disparate-treatment claim is not required to show that an employer had knowledge of his or her need for an accommodation. Instead, the Court found, the applicant need only show that the need for accommodation was a motivating factor in the employer’s decision.

As we reported to our members earlier this year, in this case Abercrombie & Fitch, a retail clothing store, maintained a “Look Policy,” which prohibited the wearing of caps for all sales floor employees. The plaintiff and applicant wore a head scarf or hijab, to the interview. The store declined to offer her employment even though she met its qualifications for hire, and together with the EEOC she filed suit under Title VII for religious discrimination (specifically, for failure of the store to provide reasonable religious accommodation.)

Abercrombie & Fitch argued that no liability could be found if the plaintiff were unable to show that the employer had “actual knowledge” that the individual needed accommodation – specifically, in this case, that Abercrombie & Fitch had “actual knowledge” the headscarf was a result of a religious observance or practice. SCOTUS disagreed and stated that employer’s knowledge is not a factor in the issue, but found that the employer’s motive in making an adverse decision dictates the standard for discrimination. The Court allowed there is a heightened burden in disparate treatment religious discrimination claimed, and noted that “Title VII does not demand mere neutrality with regard to religious practices,” but instead required employers provide “favored treatment” in which “otherwise neutral policies…give way to the need for accommodation.”

In light of this decision, employers need to take extra care in the events that lead to employment and hiring decisions. The critical factor for an employer is the motive behind the decision, and avoiding any semblance of discrimination in basing its decision not to hire an applicant on anything it should have known or constructively determined during the interview process. Best practices here dictate that the employer should not guess as to whether the employee or applicant will require accommodation for religious or other reasons protected under Title VII: When possible, the employer should wait for the employee or applicant to ask for something and then allow that individual to explain if the accommodation is necessary because of a sincerely held religious belief or practice. In that way, there is no guesswork and the employee or applicant has stated his or her case and the employer can move forward accordingly.

Finally, and many of you may not find this at all palatable, employers should take a long hard look at their policies on appearances, especially when those policies impact an applicant or employee who is required to wear certain items of clothing because of his or her religion. Employers need to ask themselves if these policies are so important so as to run the risk of going afoul of Title VII and the liabilities and fallout sure to follow.

Hilary Atkins

Posted In: Legal, Uncategorized

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