Attorneys React To High Court's EEOC v. Abercrombie Ruling
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Portfolio Media. Inc. | 860 Broadway, 6th Floor | New York, NY 10003 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | customerservice@law360.com Attorneys React To High Court's EEOC v. Abercrombie Ruling Law360, New York (June 01, 2015, 7:30 PM ET) -- On Monday, the U.S. Supreme Court ruled in EEOC v. Abercrombie & Fitch Stores Inc. that in order to prevail on a disparate treatment claim, a job applicant only has to show that her need for a religious accommodation was a motivating factor in the employer's decision, not that the employer had knowledge of the need. Here, attorneys tell Law360 why the decision is significant. George Abele, Paul Hastings LLP “The decision expands employer liability in Title VII religious disparate treatment claims by finding the statute demands more than 'mere neutrality with regard to religious practices,' but rather that employers have an affirmative obligation to not take adverse action against any individual because of religious observance or practice (whether known or unknown). The court held an employer’s actual knowledge of an individual’s religious practice was not controlling, but instead, liability was based on the employer’s motive for the action and whether that motive was because of a desire to avoid providing any form of religious accommodation.” Lynne A. Anderson, Drinker Biddle & Reath LLP "The practical impact is not significant — employers generally recognize that an applicant’s religious practice must not be a factor in an employment decision. Even Abercrombie & Fitch had already abandoned it’s 'look policy' which prohibited headgear and black clothing. To the extent that this ruling may be misinterpreted to apply to other 'accommodation' claims, we appreciate the court’s clear explanation that ADA discrimination claims should be treated differently — employers are only obligated to accommodate known physical or mental limitations.”
Kathryn Barcroft, Cohen & Gresser
“This is an important decision for employers to be aware of in the hiring process,
because when interviewing prospective employees to work for their company they must
be aware of the need to accommodate an applicant’s religious practices whether or not
the need for an accommodation is actually communicated to them by the applicant. An
employer faces the burden, if the company has some idea that accommodation is
necessary, to accommodate an applicant with a religious need such as wearing a
religious headscarf. An employer may face liability under Title VII if the company’s
desire not to accommodate the applicant’s religious need is a motivating factor in the
decision not to hire the applicant.”
Wendi Barish, Weber Gallagher
“The EEOC v. Abercrombie & Fitch Stores Inc. decision sends a very clear message to
employers. Employers who perceive the need for a religious accommodation and make
an employment decision based on that perception may be subject to liability under Title
VII. It is not incumbent on the applicant to request a religious accommodation. In the
Abercrombie case, the applicant simply wore a headscarf to her interview and her doing
so resulted in her not being hired. The decision serves to reinforce something we were
taught long ago: Don’t judge a book by its cover.”
Lindsay M. Bouffard, Roetzel & Andress
“The Supreme Court’s ruling complicates long-standing wisdom that employers should
avoid asking applicants about their religious beliefs or making any assumptions about
applicants’ beliefs. Employers now must walk a tightrope when determining whether to
ask applicants about accommodation of religious beliefs. The decision indicates
employers should ask questions when they have any suspicion that an employee may
require a religious accommodation, even if the applicant has not asked for such an
accommodation. It is likely this will generate future litigation with the courts left to
determine whether an employer’s suspicion and/or its inquiry was reasonable.”
Jamie Dokovna, Becker & Poliakoff PA
“The court’s ruling is not surprising but will likely have unintended consequences on
how employers do business. Most employers know they can’t discriminate during the
interview process, but this ruling poses new risks. For example, employers may be
tempted to inquire about religious beliefs or make assumptions about an applicant that
are perceived as discriminatory. The takeaway for employers is that they should treat
religious accommodation issues during the interview process similar to disability issues.
Asking whether an applicant can comply with the dress code policy either with or
without an accommodation is certainly easier than defending a discrimination lawsuit.”
Hope B. Eastman, Paley Rothman
2"This decision makes it clear that an employer cannot refuse to hire an applicant
because of a practice that the employer knows or suspects is religious. In the eyes of
the court, not hiring an applicant because of a religious practice is synonymous with
refusing to accommodate the religious practice, even if the applicant has not requested
an accommodation. The bottom line is that employers should be wary of making any
employment decision based on a practice that they believe — or suspect to be —
religious. The court left for another day an employer's responsibility if it lacks even a
suspicion that a practice is religious.”
Tim K. Garrett, Bass Berry & Sims PLC
“The court issued a 'strict constructionist' ruling and found that Title VII does not require
that the employer have knowledge of the religious nature of the practice needing
accommodation. The standard approaches strict liability if an employer acts to avoid an
accommodation that later turns out to be religious in nature. The court noted that it is
the province of Congress, not the courts, to impose some further 'knowledge'
requirement before imposing liability. The practical effect fits the trend of an increasing
duty imposed on employers to ask, if not otherwise known, about the genesis for the
needed accommodation that may be concerning.”
Stuart Gerson, Epstein Becker Green
“The court's essentially unanimous disposition of EEOC v. Abercrombie & Fitch Stores
is not particularly surprising or, given its facts, particularly controversial. The court held
that to prevail in a Title VII religious discrimination case, a plaintiff has to show only that
her need for an accommodation was a motivating factor in the employer’s decision, not
that the employer had knowledge of her need. The plaintiff's wearing of a hijab to her
interview should have been an obvious signal, irrespective of the potential employer's
actual knowledge of what the applicant needed. Thus, the issue is one of employer
motive and an employer may not make an applicant’s religious practice, confirmed or
otherwise, a factor in employment decisions. Important enough in itself, Abercrombie is
likely to have spillover effect, particularly in disability cases.”
Michael S. Glassman, Dinsmore & Shohl LLP
“Employers now may be liable under Title VII for not accommodating an applicant’s (and
presumably a current employee’s) need for a religious accommodation without the
individual first having to show that the employer had 'actual knowledge' of the
individual’s need for an accommodation. Instead, an individual now must only to show
that his need for an accommodation was a motivating factor in the employer’s decision.
Even where an applicant does not specifically request a religious accommodation, if an
employer has some basis to believe a religious accommodation may be necessary, it
cannot simply reject the applicant because it is unwilling to make an accommodation.
Employer still should have a defense if they genuinely do not know about an applicant’s
or employee’s need for a religious accommodation, or if the employer’s decision is
motivated by a legitimate nondiscriminatory reason. However, employers now need to
3be much more cautious in dealing with applicants, and also employee requests, where
there is some basis for the employer even to assume a religious accommodation was
necessary.”
Jeanine Gozdecki, Barnes & Thornburg LLP
“In a landslide decision, the Supreme Court ruled 8-1 in favor of the EEOC. This case
reminds employers that religion is not like other protected classes. As the court said,
Title VII gives religion 'favored treatment,' requiring an affirmative obligation to
accommodate religious practices if it can be done without imposing an undue hardship
on the employer. The decision raises more questions, including whether Abercrombie
could have accommodated the religious practice without creating an undue hardship. In
1977, the Supreme Court established a 'de minimis' rule — any accommodation
causing more than a de minimis cost would be an undue hardship.”
Gay Grunfeld, Rosen Bien Galvan & Grunfeld
“Today’s 8-1 Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc.,
applies a welcome common-sense approach, noting that under Title VII 'an applicant
need only show that [her] need for an accommodation was a motivating factor in the
employer’s decision' not to hire the applicant. It was undisputed that Abercrombie did
not hire Ms. Elauf because she wore a scarf for religious reasons. Although relatively
unusual to have proof of this nature in a failure to hire case, the court’s decision should
make it easier for job applicants of all types to succeed if denied jobs for improper
reasons.”
Ashley Halberda, Carothers DiSante & Freudenberger LLP
“The U.S. Supreme Court’s decision continues the trend of expanding religious rights
under the 1964 Civil Rights Act. Under the court’s ruling, an employer can be liable for
religious discrimination absent any request for religious accommodation by the
employee. This decision allows for an easier inference against the employer that an
applicant’s religious practice was a motivating factor in the employer’s decision not to
hire the applicant.”
Spencer Hamer, Michelman & Robinson LLP
“This decision underscores the importance of training all employees involved in the
hiring process on the nuances of religious accommodation. The burden is no longer on
the employee to raise the issue of accommodation, so employers need to be ready to
raise the issue if the employee doesn’t. On the other hand, employers could be held
liable if they ask questions that are not necessary in the accommodation analysis.
Striking this delicate balance will be difficult for many employers, but this is the reality
that they have to be prepared for following this decision.”
Stephen J. Hirschfeld, Hirschfeld Kraemer LLP
4“The Supreme Court’s decision is not at all surprising to me. For many years now, I
have been counseling managers to be mindful of the need to reasonably accommodate
religious practices when those practices appear to be open and obvious. As the
Supreme Court decision stated, Title VII doesn’t merely demand neutrality with respect
to religious practices but instead mandates favorable treatment so long as the practice
does not unduly affect the company’s ability to operate its business. Employer groups
who see this decision as somehow applying a new set of draconian rules are
overreacting. Hiring managers merely need to be educated to understand how to
thoughtfully address whether an applicant’s religious practice would unreasonably
interfere with that person’s ability to do his or her job.”
Andrew Hoag, Fisher & Phillips LLP
“The court’s decision provides a self-proclaimed 'straightforward' rule — 'An employer
may not make an applicant’s religious practice, confirmed or otherwise, a factor in
employment decisions' — the practical application of which is anything but
straightforward. Since an applicant need only show that his or her religion was a
motivating factor in an employer’s decision not to hire him or her, employers face a
practical paradox: Employers may face liability for failure to accommodate a religious
practice — even if they do not have knowledge of the religious practice — but
employers are prohibited from inquiring about religious practices. So even where an
employer has no knowledge that an employee had a religious practice, failure to hire
her might be motivated by her religious practice? Yes.”
Barbara Hoey, Kelley Drye & Warren LLP
“'Motive matters' is today’s motto. The Supreme Court once again reiterated that
employees' religious practices are entitled to ‘favored’ treatment, and an employer must
accommodate those practices — whether 'confirmed or otherwise' — when making
employment decisions. In other words, whether based on actual request or ‘suspicion,’
an employer cannot be motivated by a desire not to accommodate a religious practice
when it makes a hiring decision. This does not make new law, but given the millions of
people in this country who practice various religions, it does confirm that this is an
obligation which employers must take seriously.”
Carrie Hoffman, Gardere Wynne Sewell LLP
“The Supreme Court held an applicant need only show that the need for an
accommodation was a motivating factor in the decision despite the lack of discussion
regarding an accommodation. Most employers are generally following proper hiring
practices and therefore this decision is not likely to have a significant impact for them.
But this decision could have a larger impact on the employers in the retail and
hospitality sectors that are basing hiring decisions on presenting a ‘uniform look.’ They
need to review their practices and reeducate their hiring managers.”
5Veena Iyer, Nilan Johnson Lewis
"This ruling puts an onus on employers to address potential conflicts between an
applicant's religious practices and work requirements. Many managers may observe or
suspect a potential conflict, but shy away from raising it because they think doing so is
itself discrimination. This opinion demonstrates that it’s permissible — if not required —
for an employer to initiate dialogue about an applicant's potential inability to comply with
work requirements or rules. In the case of Abercrombie’s look policy, some applicants
will have no religious objection to compliance, and others will, sparking an interactive
conversation about accommodations. An individual may be doing or wearing something
for a number of reasons or no reason at all. Communicating and clarifying is good for
employers because they can address accommodation matters early on and don’t have
to lose out on talent.”
Amy K. Jensen, Hinshaw & Culbertson LLP
“The U.S. Supreme Court has set an almost strict liability standard for employers by
requiring the accommodation of suspected, but not necessarily known, religious
practices, even in the absence of a request for accommodation by the applicant or
employee. It is easy to see how this decision can have far-reaching effects in that
employers who suspect a need for an accommodation must now seemingly inquire
about and discuss an accommodation or religious practice which may not even exist,
and that could pave the way for further discrimination claims to the extent any
employment decision is adverse to that applicant or employee.”
Adam Karr, O’Melveny & Myers LLP
“Abercrombie’s holding that ‘an unsubstantiated suspicion’ can be enough to impose
liability for religious discrimination places employers between a rock and a hard place.
On the one hand, Abercrombie holds that employers may be held liable for ‘an
unconfirmed suspicion’ about an applicant's religious practices, which suggests a
greater need for employers to understand what the applicant's religion actually requires.
On the other hand, employers can face potential liability for religious discrimination if
they pose questions to applicants about their religions. It will take some time for the
lower courts to sort through just how this will work in practice.”
Jennifer A. Kearns, Duane Morris LLP
“This ruling underscores the importance for employers to train all persons conducting
interviews to rigorously avoid stereotyping applicants based on appearance or dress, or
jumping to conclusions about an applicant requiring an accommodation if hired.
Employers who have uniform or dress codes may still be required to provide
accommodation if an employee wears a garment or maintains an aspect of personal
appearance for religious reasons (e.g., a beard). An employer should not presume that
an applicant will insist upon an accommodation or even that he or she will maintain the
personal grooming style or style of dress if hired.”
6Theresa Kelly, Day Pitney LLP
“While I understand the distinction between knowledge and motive, in the real world, it
may present some proof problems. It will be interesting to see how this lawsuit plays out
at the trial level. Other religious accommodation cases that do not involve dress or other
practices that may be apparent at an interview or during the hiring process may present
facts where there is no possible way to prove motive without knowledge. In this case,
however, the interviewer articulated her suspicion that the plaintiff wore the headscarf
because of her faith, bringing it within the purview of Title VII.”
Jason M. Knott, Zuckerman Spaeder LLP
“The court’s opinion rejects a rule under which an employee must expressly tell an
employer that she needs a religious accommodation in order to impose liability on the
employer for failing to provide it. In this case, Ms. Elauf didn’t tell Abercrombie that she
wore her headscarf for religious reasons, but it was still unlawful for Abercrombie to
infer that the scarf was religious and refuse to hire her on that ground. It remains to be
seen whether an employer that does not know of or even suspect that an employee’s
practice is religious can still be held liable for discrimination 'because of' that practice,
because the court refrained from deciding that issue.”
Esther Lander, Akin Gump Strauss Hauer & Feld LLP
“The Ambercrombie decision confirms that employment decisions should not be based
upon assumptions and stereotypes concerning protected groups. The decision not to
hire Ms. Elauf was made under the assumption that she would need a religious
accommodation to comply with the company’s 'look policy.' The Supreme Court holds
that making such assumptions ('confirmed or otherwise') can constitute intentional
discrimination if considered as a factor in employment decisions. The court did not
tackle the more difficult question of whether Title VII requires religious accommodation
for headwear when employers implement a facially neutral 'look' policy to promote their
brand image.”
Adam Levin, Mitchell Silberberg & Knupp LLP
“The Abercrombie decision sets a trap for the unwary. The court ruled that a well-
intentioned employer can be punished for unlawful discrimination based on its uniform
application of an appearance policy such as that which broadly regulates unkempt
beards, long flowing tresses or certain apparel (like, for example, a hijab or yarmulke).
The court held that an employer’s knowledge that an applicant or employee needs an
accommodation is immaterial. But the court seems to have punted on the constitutional
limitations of its decision. Conspicuously absent is any discussion of the First
Amendment, which protects Abercrombie’s commercial speech manifest in its branding
through the use of attractive sales personnel with a specific look and style. I expect that
we will meet that thorny issue in the not too distant future.”
7Steven Ludwig, Fox Rothschild LLP
“It’s a big win for the EEOC, particularly with an 8-1 decision and an opinion authored by
Justice Scalia. In order to avoid liability, the decision puts employers on an even
slimmer pathway between a rock and a hard place. The Sergeant Schultz 'I know
nothing' defense becomes harder to accomplish since there needs to be not even a
suspicion that the practice at issue is a religious practice. If there is even a whiff of
suspicion, then an employer is better off knowing and inquiring about whether religion is
involved and to conduct an individualized evaluation whether an accommodation
requires waiver of a neutral rule or whether this waiver rises to the level of an undue
hardship.”
Deborah Marcuse, Sanford Heisler Kimpel LLP
“The Abercrombie decision highlights two crucial points about Title VII that are often
misunderstood by employers and their counsel. First, the discriminatory motive of the
employer is the central issue in any disparate treatment case. Second, 'but for'
causation under Title VII means only that discriminatory animus must be 'a motivating
factor' in the employer’s decision. When assessing the merits of a gender discrimination
case, ask yourself this essential question: Would the decision maker in this case have
made the same decision even if he or she believed that the employee was not a
member of the protected class?”
Audrey Mross, Munck Wilson Mandala
“Employers are on notice that they cannot avoid reasonable accommodation of
applicants’ and employees’ religious practices by relying on a facially neutral dress code
and claiming they had no knowledge of the individual’s religious beliefs. This opinion
reinforces the value of training hiring personnel in employment discrimination basics or
centralizing that authority. While it is not clear that escalating the interviewer’s concerns
to the HR or legal department would’ve made a difference in this case, in many
organizations it would. If company culture emphasizes decentralization of employment
decisions, then those tasked with making decisions fraught with potential liability need
training in employment basics plus periodic refreshers to address evolution of the law.”
David D. Powell Jr., Ogletree Deakins Nash Smoak & Stewart PC
“Based on the Supreme Court’s decision, lower trial courts will be more willing to infer a
discriminatory motive if the circumstances demonstrate the employer somehow ‘should
have known’ or had constructive knowledge of the applicant’s need for an
accommodation. The decision also requires employers to take a harder look at their
appearance policies, especially when those policies may impact an applicant or
employee who is required to wear certain items of clothing or dress in a certain way
because of his or her religion. Employers need to ask themselves if the policy is really
important enough to maintain. At a minimum, employers need to ensure that their
8management level employees are well versed in Title VII’s requirements and know how
to respond when confronted with an applicant or employee who is dressed in a way that
may conflict with a workplace requirement.”
John P. Quirke, McCarter & English LLP
“The court’s message here is cura te ipsum — healer, heal thyself. Abercrombie’s
position focused on its lack of knowledge about plaintiff’s motives — if we didn’t know of
her religious motivation, how can we have discriminated by failing to provide religious
accommodation? The decision lays waste to that line of thinking. Employers must
ensure that their actions are devoid of religious concern before asking about employee
motivation. The new line of questioning for employers must be: why can’t an employee
wear a hijab (or a cross or Star of David), before even beginning to wonder why the
employee is wearing it in the first place.”
Richard Rainey, Womble Carlyle Sandridge & Rice PLLC
“The practical impact of this decision for employers is significant. Employers are
typically told not to ask questions about an applicant’s religious beliefs or practices
unless the applicant has made a request for a reasonable accommodation. However,
with this decision employers may find themselves in a position in which it would be
prudent to ask, on their own initiative, whether or not the dress or personal appearance
of an applicant that would otherwise be in violation of the employer’s policies is based
on a religious belief or practice and whether a reasonable accommodation is needed.”
Jaime Ramon, Dykema Gossett PLLC
“What’s important here is that an employer and an applicant need not engage in an
'interactive process' in order for religious accommodation to be invoked. As Justice
Scalia stated in the opinion, 'any unsubstantiated suspicion' that a prospective
employee may need religious accommodation may itself be a violation. Employers need
to be aware that any policy that prohibits applicants from practicing their religious
observations may be in violation of law if traditional clothes or practices used in their
religion are excluded by that policy, even if the applicant does not ask for
accommodation.”
Stephen Richey, Thompson Hine LLP
“The Abercrombie decision appears to be an earthshaking departure from prior Title VII
jurisprudence, because the court states that an employer need not have knowledge of
the need for accommodation to create liability. It is difficult to imagine how an employer
can intentionally discriminate without knowledge. The decision clarifies that an
employer’s negative hiring decision based on conjecture that an employee’s dress is
based on religious practice is sufficient. Holding that an employer’s decision not to hire,
based on the suspicion that the applicant religious practices will clash with its dress
code, is garden variety religious discrimination, not new law.”
9Jonathan A. Segal, Duane Morris LLP
“The case is troublesome for management because the Supreme Court held that an
employer can have a discriminatory motive without knowledge. That may make sense in
legal world but not in the real world. A key footnote reads: '[W]hile a knowledge
requirement cannot be added to the motive requirement, it is arguable that the motive
requirement itself is not met unless the employer at least suspects that the practice in
question is a religious practice.' Train your managers not to speculate! The result may
have been different had there not been speculation.”
M. Misbah Shahid, Miller Canfield Paddock & Stone PLC
“In light of EEOC v. Abercrombie & Fitch Stores Inc., employers should pay special
attention to the factors that lead to employment and hiring decisions. Employers may
not protect themselves from potential liability under Title VII for adverse actions based
on lack of knowledge of the employee/applicant’s membership in a protected class or
need for an accommodation. The critical inquiry is the motive behind the decision: Was
membership in the protected class or the need for accommodation a motivating factor,
even if the applicant/employee did not identify such membership or need and the
employer’s conclusions regarding such membership or need were incorrect.”
Robin E. Shea, Constangy Brooks Smith & Prophete LLP
“The Supreme Court majority did what I expected and, in my opinion, the decision
makes good sense. It would be consistent with the advice that we would give to clients
with 'apparent' religious accommodation issues: If an employer has reason to believe
that an otherwise-qualified individual may not be able to comply with a job-related
requirement because of a religious belief or practice, the employer should not simply
reject (or take other adverse action against) the individual but should consider the
possibility of reasonable accommodation.”
Amandeep Sidhu, McDermott Will & Emery LLP
“Rejecting Abercrombie’s ‘look policy,’ Justice Scalia’s majority opinion has far-reaching
implications not only for Muslims, but for Sikhs and other religious minorities with visible
articles of faith (like headscarves and turbans) that often come in conflict with so-called
‘look policies.’ Today’s decision marks the end of that era, as employers can no longer
defend ‘look policies’ that have served as pretext for discrimination for decades.”
Peter D. Stergios, McCarter & English LLP
“This will force — wrongly, in my view — employers to have discussions with job
candidates and employees about whether workplace rules can be accommodated. The
court’s analysis here is consistent with earlier holdings under Title VII where courts
couldn’t find a basis for discrimination on the merits, but have found retaliation.
10However, this decision suggests a hidden presumption: that employers, without being
told, must assume that certain dress might have a religious justification, requiring
accommodation. But where does this all end? Nose rings? Tattoos? Abercrombie has
hinted it won’t give up the fight, so it will be interesting what occurs on remand.”
Philip R. Voluck, Kaufman Dolowich & Voluck
“The real issue was whether a job applicant or employee is required to actually notify
their employer of their religious belief or practice as a condition of obtaining an
accommodation. Federal courts have answered this question two ways. Courts recently
faced with this issue, including the Tenth Circuit, which was the subject of the court’s
review, have answered in the affirmative. In reversing the Tenth Circuit, the court holds
that since there is no 'knowledge requirement' under Title VII, an applicant or employee
is under no obligation to notify and request an accommodation based upon his or her
religious belief or practice.”
--Editing by Mark Lebetkin.
All Content © 2003-2015, Portfolio Media, Inc.
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