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New York Employment Law Blog

Friday, June 12, 2015

Look At Me – I May Need An Accommodation

In EEOC v. Abercrombie & Fitch Stores, Inc. the United States Supreme Court held that an applicant does not need to show that an employer has actual knowledge of an employee’s need for a religious accommodation to prevail on a Title VII claim.  The Court found that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”   

In this case, the applicant, a practicing Muslim, applied for a sales position at one of Abercrombie’s stores in Oklahoma.  The applicant wore a headscarf or “hijab” to her interview, but at no time during the interview did she mention her religion or need for an accommodation.  Also, the interviewer never mentioned the applicant’s religion or the headscarf during the interview.  Despite the applicant receiving a favorable review, Abercrombie did not hire her because she did not confirm to its “Look Policy,” which prohibited the wearing of “caps.” 

In the lawsuit that ensued, the EEOC (the plaintiff) argued that Abercrombie violated the law by failing to explore an exception to its “Look Policy” to accommodate the applicant’s headscarf, while Abercrombie argued that there was no duty to modify the policy because the applicant never affirmatively asked for an accommodation or advised that she wore the headscarf for religious purposes.  The Supreme Court rejected Abercrombie’s argument and focused on the distinction between knowledge and motive.  On the one hand, the Court noted that if an employer has actual knowledge of an applicant’s need for an accommodation, the employer does not violate Title VII by refusing to hire the applicant if it is not motivated by avoiding the accommodation.  On the other hand, an employer that “acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”  Here, Abercrombie knew – or at least suspected – that the applicant wore the headscarf for religious purposes. 

Furthermore, although Abercrombie’s “Look Policy” was neutral – in that it forbid the wearing of caps by all employees – the Court stated 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 them 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.’”  Therefore, “Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”   

What’s the fallout?  Now more than ever, employers must train their managers (and interviewers) so that they know how to effectively deal with religious and disability accommodation issues.  Moreover, employers should review their policies even if they seem to be neutral to ensure that there are no unintended consequences on religious accommodations.  


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