Religion in the Workplace (EEOC v. Abercrombie & Fitch Stores, Inc. and Best Practice Reminders for Employers)

Submitted by the Labor & Employment PAC

By: Crystal Trotter, Esq., Martineau King PLLC

Whatever happened to the proverbial understanding that religion, like politics, is not necessarily the best subject for conversation in the break room at work? Undoubtedly, the rhetoric from the ongoing presidential campaign, the post 9/11 war on terrorism, the right to die narrative, and the recent decision by the Supreme Court affirming the legality of same-sex marriage are a few examples of issues that intersect with religious or personal beliefs which have once again upped the ante of watercooler small talk. What does this mean for employers and work environments?

While the EEOC is still focused on challenging systemic discrimination as set forth in its strategic enforcement plan for fiscal years 2012-2016, in the wake of EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028, 192 L.Ed.2d 35 (2015) (“Abercrombie”) employers should continue to be cautious and diligent, particularly as it pertains to workplace accommodations for religious beliefs and practices. The Supreme Court decided Abercrombie in June 2015 and, in an opinion by Scalia, the Court overturned a Tenth Circuit decision granting summary judgment in favor of the respondent (Abercrombie).[1]

Samantha Elauf (“Elauf”), a Muslim teenager who, pursuant to her religion wore a headscarf, was denied employment at Abercrombie. Specifically, the store’s assistant manager deemed Elauf suitable for hire. During her interview, Elauf was not directly asked about her religion or the headscarf that she wore. However, the store’s assistant manager consulted the district manager for guidance about whether Elauf’s headscarf violated the company’s dress policy, a/k/a the “Look Policy,” which prohibited “caps[.]” The district manager confirmed that the headscarf would indeed violate the company’s otherwise neutral policy and directed the assistant store manager not to hire Elauf.

The EEOC prevailed at the district court level, winning summary judgment on liability and obtained an award of $20,000.00 in damages at trial. The Tenth Circuit’s reversal was promulgated on grounds that “failure-to-accommodate liability attaches only when the applicant provides the employer with actual knowledge of his need for an accommodation.” Abercrombie, 135 S.Ct. at 2030. The Supreme Court held that “[t]o prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.” Id.

Some key takeaways from the Abercrombie Court’s reasoning include the following:

· Title VII relaxes the standard “but-for” causation associated with the term “because of” found in the disparate treatment and/or disparate impact provisions of Title VII. Under the less stringent Title VII interpretation of the term, making a protected characteristic even a “motivating factor” in an employment decision is prohibited. Thus, this lenient reading of the statute eliminates the arguably implied “knowledge” or “notice” requirement and allows liability in cases without actual knowledge of a protected characteristic;

· “Motive and knowledge are separate concepts.” Id. at 2032. Related to the latter point about a more relaxed reading of Title VII is the notion that motive and knowledge are distinct. The Court elaborated by explaining that knowledge does not always mean liability. For instance, an employer is not liable in a circumstance where said employer has knowledge of a protected characteristic but makes a decision without regard to the protected characteristic. However, as determined in Abercrombie, the Court has affirmed the ability for an employer to be liable, even when the employer lacks actual knowledge of the protected characteristic, if the protected characteristic is a “motivating factor” in a decision made by the employer;

· Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices. Id. at 2030;

· Failure to accommodate challenges regarding religious practices can be brought as disparate treatment claims and do not have to be brought solely as a disparate impact case. The Court supported this position based on Title VII’s definition of religion, which encompasses “all aspects of religious observance and practice, as well as belief.” (citations omitted); and,

· As all versed employment lawyers are aware, Title VII requires otherwise neutral policies to give way to the need for an accommodation.

Alito’s concurrence includes some worthwhile observations regarding his disagreement with the majority’s interpretation of Title VII. Of note is his critique that Title VII does invoke a knowledge requirement. Alito argues that an employer cannot be liable for taking adverse action because of a religious practice if the employer does not know that the practice is religious. He explains that if Title VII (i.e. § 2000e-2(a)(1)) really does not impose a knowledge requirement, “it would be irrelevant in this case whether Abercrombie had any inkling that Elauf is a Muslim or that she wore the headscarf for a religious reason.” Id. at 2035. Valid point. Only time will tell what becomes of the decision that Title VII lacks a knowledge component. In the meantime, here are some things employers should continue to be mindful of to avoid these and other types of religious discrimination claims:

· Employers may now want to consider engaging in an interactive process about accommodation with an applicant or employee if they suspect or have reason to believe religious accommodations may be needed. However, it is still not considered good practice to delve into questions about religion, and it is wise to remain cognizant of and try to avoid stereotyping at all costs;

· Clear and concise documentation regarding motivating factor(s) for employment decisions are helpful to avoid speculation about motive;

· It may not hurt to circulate or re-circulate anti-discrimination or anti-retaliation policies if a work environment changes as a result of public events;

· The EEOC reiterates that religious accommodations can include flexible scheduling, voluntary shift substitutions or swaps, modifications to policies or practices, and job reassignments; and,

· Never overlook the fact that an undue burden remains a legitimate defense to obligations for accommodations an employer may incur. Factors to consider include: costs, workplace safety, and the rights of other employees.

· When in doubt, employers should take the time to discuss the issue with a knowledgeable employment law attorney.

Author Crystal Trotter is a Partner with the law firm of Martineau King PLLC in Charlotte, NC. Licensed in both North and South Carolina, Crystal has significant experience investigating, counseling, training, and litigating employment related matters. She has garnered stellar results for municipalities and private employers of all sizes including Fortune 500 companies. Most importantly, she thoroughly enjoys practicing employment law.