Employers must continue to ensure that applicant’s religious practices are not a factor in hiring decisions. So said the Supreme Court this week. The Court ruled Monday in favor of a Muslim woman whom Abercrombie & Fitch refused to hire because she had worn a hijab—a traditional Muslim head scarf—when she interviewed for a salesperson position at a retail store in Tulsa.[1] Then-17-year-old Samantha Elauf did not mention the hijab or her religion in her interview, but the interviewer assumed she was Muslim and that she wore the hijab for religious reasons. Evidence suggested the hijab influenced the decision not to hire her because it conflicted with Abercrombie’s “look policy,” which required sales persons to wear “classic East Coast collegiate style of clothing.”
The EEOC initially won summary judgment on Ms. Elauf’s behalf, but the Tenth Circuit Court of Appeals reversed that decision, reasoning that Ms. Elauf had failed to notify Abercrombie of her need for a religious accommodation.
Writing for the majority, Justice Scalia confirmed that an applicant need not make a specific request for religious accommodation to obtain relief under Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in hiring: “Title VII forbids adverse employment decisions made with a forbidden motive, whether this motive derives from actual knowledge, a well-founded suspicion, or merely a hunch.”
Justice Scalia called it a “really easy decision.”
The decision reconfirms that an employee’s religious practices may not be a factor in employment decisions—whether or not the employer has actual knowledge, or merely presumes or suspects, that those practices are based on religious beliefs.
The Court’s vote was 8-1, with Justice Clarence Thomas dissenting. The decision is in line with the Court’s recent broad view of religious rights, following last year’s Burwell v. Hobby Lobby[2] decision in which the Court found broad religious freedom rights for corporations, and Holt v. Hobbs,[3] in which the court found that a ban on beards infringed on the religious rights of prisoners earlier this year.
Therese K. Dennis
Counsel, Steve Harvey Law
[1] EEOC v. Abercrombie & Fitch Stores, Inc., Docket No. 14-86 (June 1, 2015)
[2] Docket No. 13-254 (June 30, 2014).
[3] Docket No. 13-6827 (January 20, 2015).