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.
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