November 23rd, 2016
Employer Violated Title VII When It Refused To Hire Muslim Applicant On The Basis Of Its Dress Code Policy
Earlier today, the United States Supreme Court held, in an 8-1 decision, that Abercrombie & Fitch (A&F) discriminated against a practicing Muslim female when it refused to hire her because her headscarf would conflict with its dress code policy. Although A&F managers thought the applicant was qualified to be hired, A&F argued that the headscarf (its managers saw the applicant wearing it during the interview process) violated its dress code policy which precluded employees from wearing any “caps.” A&F argued that the applicant must expressly inform it of her need for a religious accommodation. In other words, the employer argued that Title VII required actual knowledge of the need for a religious accommodation and that constructive knowledge was not sufficient. A&F also argued that enforcement of the dress code policy was critical to the vitality of its preppy clothing brand.
The EEOC sued on behalf of the applicant. The jury awarded $20,000 in damages. The Tenth Circuit Court of Appeals reversed in favor of A&F, citing the applicant’s failure to inform A&F of her express need for the headscarf accommodation. Justice Scalia, writing for the Court, held that an employer’s constructive knowledge of the need for a religious accommodation was all that Title VII required. The Court held if an applicant demonstrates her religious practice or clothing was a “motivating factor” in the adverse employment decision, that the employer is liable for disparate treatment discrimination, unless the employer can demonstrate an undue hardship. The Court also noted that Title VII requires otherwise-neutral policies, like dress code policies, to give way to the need for an accommodation.
Going forward, employers with facially neutral dress code policies or practices should consider revisiting them to ensure, at the very least, they do not proscribe religious accommodations. Employers may also want to consider altering their policies or practices to expressly include the potential for a religious accommodation.