On June 1, 2015, the United States Supreme Court in the EEOC v. Abercrombie & Fitch Stores case, decided the so-called headscarf case on the basis that the employer's action in enforcing a "neutral policy" violated the sincerely-held religious beliefs of a Muslim woman, Samantha Elauf.  The case involved Abercrombie & Fitch Stores' decision to not hire an applicant who wore a headscarf to her interview because it conflicted with the Store's "Look Policy," which prohibited wearing of "caps."  While Ms. Elauf did not disclose that she was Muslim, or that she wanted a religious accommodation, the Store suspected she was a practicing Muslim.  In fact, the assistant store manager and interviewer determined that Ms. Elauf was qualified for the position, but asked her store manager and the district manager about Ms. Elauf's headscarf.  The district manager responded that the headscarf would violate the Look Policy and instructed that Ms. Elauf not be hired.

Prior to the case reaching the U.S. Supreme Court, the Tenth Circuit Court of Appeals had ruled in favor of Abercrombie & Fitch, holding that for an employer to be liable for failing to accommodate a religious practice, the applicant must first request an accommodation, thereby giving the employer "actual knowledge" of the need for an accommodation.  The Supreme Court rejected the "actual knowledge" standard, holding "an employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."  In so holding, the High Court stated that an employer may violate Title VII even if it is acting merely on an "unsubstantiated suspicion."  The Court further stated that the federal discrimination law "prohibits actions taken [by the employer] with a motive of avoiding the need for accommodating religious practices."

Thus, if an employer suspects or has some reason to believe that an employee needs a religious accommodation and such speculation is a motive for making an employment decision, an employer could be liable for religious discrimination, unless employing the person would present an undue hardship.  In such cases, the employer has an obligation to reasonably accommodate the applicant or employee, or at least engage in the interactive process by discussing the need for an accommodation.

In elaborating on its reasoning, the Court provided an example in which an employer suspects, but does not know for certain, whether an applicant is an Orthodox Jew who would be unable to work on Saturdays.  If the applicant, in fact, would require Saturdays off and the employer's decision not to hire was motivated in part to avoid accommodating such time off, the employer would be found to have violated Title VII, unless employing the applicant would constitute an undue hardship.

An important takeaway from this case is the Court's declaration that "Title VII does not demand mere neutrality with regard to religious practices - that they be treated no worse than other practices.  Rather, it gives [applicants] favored treatment, affirmatively obligating employers not to fail or refuse to hire or discharge any individual...because of such individual's religious observance and practice," unless the employer would face an undue hardship by hiring the applicant. 

In light of the Supreme Court's decision, employers are well advised to review any "neutral" policies to ensure they are not applied in a manner that could be deemed discriminatory.  Equally importantly, employers should be mindful of the need to train managers and supervisors involved in the interview process concerning appropriate and inappropriate questions that may be asked of applicants.  Such questioning should focus on the job requirements, while permitting a discussion of possible accommodations to any "neutral" policies.

If you need any assistance with reviewing employment policies or would like to schedule training on this or any other labor and employment topic, please contact any member of Mirick O'Connell's Labor, Employment & Employee Benefits Group.