Written on .

In June, a reasonable accommodation issue arose in the religious context in EEOC v. Abercrombie & Fitch Stores, Inc., 2015 WL 2464053 (June 1, 2015). The Court addressed the interesting question whether the prohibition of refusing to hire an applicant in order to avoid accommodating a religious practice applies only where an applicant has informed the employer of his need for accommodation. In this case, the complainant, a practicing Muslim, wore a headscarf for a religious reason when she was interviewed for a job. She was rejected because her scarf violated the dress code for employees. The evidence suggests that the decision makers knew that complainant was a Muslim and she wore the headscarf for religious reason, but she was never asked why she wore the headscarf and she did not volunteer that information.

A lower court held that applicants or employees must initially inform the employer areas of religious practices that conflict with a work requirement and their need for a reasonable accommodation for them. The Supreme Court indicates that the complainant need not always inform the employer of a need for an accommodation, as long as the complainant can show that his need for an accommodation was a motivating factor in the employer's decision. Thus, according to the majority opinion, an employer who acts with a motive of avoiding accommodation may violate Title VII even if it has no more than an unsubstantiated suspicion that accommodation would be needed. The opinion leaves somewhat fuzzy the question of whether the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice. In the facts of the Abercrombie & Fitch case, however, the employer knew or at least suspected that the scarf was worn for religious reasons.

In another important point, the Court states 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 of any individual. . . because of such individual's' 'religious observance and practice'".

Editor’s Note: The Abercrombie & Fitch case is quite significant in that the general thinking about religious accommodation in the past was that an employee had to give notice to trigger an employer's obligation to address an accommodation. Here, the opinion suggests that if the employer suspects the employee needs an accommodation for religious reasons, the employer may need to follow up and ask questions about the potential need for an accommodation based on religious needs that is likely or may be needed. The rationale of the case may also have implications for disability issues under the ADA, where again normally the employee has to indicate that he or she has a disability that needs an accommodation. In the ADA situation, however, there are greater privacy interests associated with the employees' privacy as to their disabilities, and so it is not clear that the Abercrombie & Fitch rationale will apply to ADA cases. The rationale in the Abercrombie & Fitch case can also give more attention to issues involving dress codes, grooming policies, and other subjects such as work scheduling. Of course, the employer retains the right to deny an accommodation that would impose an "undue hardship" on the employer.

Get Email Updates

Receive newsletters and alerts directly in your email inbox. Sign up below.

Recent Content

supreme court building, outdoors, blue sky

Supreme Court Reinstates Stay of OSHA Vaccine Mandate

In a 6-to-3 decision published January 13, 2022 the U.S. Supreme Court has stayed implementation of an Emergency Temporary Standard (ETS)...
viles of vaccines indoors

The Supreme Court Stays the OSHA ETS; CMS Vaccine Mandate for Healthcare Workers Goes Forward

Yesterday, we received decisions from the US Supreme Court on the status of the OSHA COVID-19 ETS and the CMS vaccine mandate for healthc...
number 15 on a brick wall

Federal Contractor Minimum Wage Final Rule Requires $15.00 Minimum Wage

On November 22, 2021, the Department of Labor's (DOL) Wage and Hour Division issued a final rule implementing President Biden's Executive...
covid vaccine viles

Appeals Court Lifts Stay to OSHA Vaccination ETS (Updated)

On Friday night, December 17, 2021, the Sixth Circuit Court of Appeals in Cincinnati lifted the stay of OSHA's Emergency Temporary Standa...
walkout, outdoors, red hats

Workplace Walk-outs and Strikes This Year Have More than Doubled

Unions have engaged in over 240 major strikes this year, doubling the number from last year. Some have labeled the situation "strike-tobe...
Federal business building, indoors

Federal Contractors Soon to Be Required to Verify They Have Affirmative Action Plans

In general, companies that do business with the federal government are required to have affirmative action plans. Such plans address how ...

Wimberly, Lawson, Steckel, Schneider & Stine

3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 /404.365.0900

Where Experience Counts

Thank you for visiting the firm's website. Please note that this website is intended for general information purposes only and does not constitute an offer of representation or create an attorney-client relationship with the firm. The firm welcomes receipt of electronic mail but the act of sending electronic mail alone does not create an attorney-client relationship. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the firm's copyright notice.

© 2020 Wimberly, Lawson, Steckel, Schneider & Stine P.C. | Site By JSM