Skip to main content

Lower Bar on Religious Discrimination Thanks to Abercrombie and Fitch

By June 8, 2015July 23rd, 2018Human Resources

by Renee Mielnicki, Esq.

Thanksreligion - church to Abercrombie and Fitch, the highest court in the country recently set forth a new standard for religious discrimination under Title VII. As a recap, Title VII is a federal civil rights law pertaining to applicants and employees that prohibits employers from discriminating against or harassing applicants based upon their membership in one of five protected classes: race, color, religion, national origin and sex. Title VII applies to any employer in the United States that have at least 15 employees.

Title VII also provides that employers must reasonably accommodate an applicant’s or employee’s sincerely held religious belief that conflicts with a job requirement, unless it would cause an undue hardship on the employer’s business. Unlike other theories of discrimination that require employers to treat applicants and employees equally, regardless of their membership in any protected class, the accommodation obligation requires employers to provide special treatment to protected class members in certain situations. The Abercrombie and Fitch case is a perfect example that highlights this obligation.

religion - mosqueSamantha Elauf, a Muslim woman, applied for a job at Abercrombie and Fitch. When she applied, the assistant store manager noticed that Ms. Elauf wore a headscarf. The assistant manager then sought clarification from the store as to whether the headscarf would violate Abercrombie’s policy forbidding employees from wearing “caps” at work. Although the assistant manager informed the district manager that she believed that Elauf wore the scarf for religious purposes, the district manager instructed the assistant manager not to hire Elauf because wearing the headscarf would violate the store’s “look policy.”

The Equal Employment Opportunity Commission (EEOC) filed suit under Title VII on Elauf’s behalf alleging that Abercrombie violated this law by intentionally discriminating against her based upon her religion. The question presented to the Supreme Court in this case was simple. It was: Does an applicant have to actually inform a prospective employer of a need for a religious accommodation in order to prove that s/he has been discriminated against under Title VII based upon religion? The answer to that question from the Court was no.

Specifically, the Court held that: “to prevail in a disparate-treatment claim, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.”

The example given by the court to clarify this standard was as follows:

menorah“For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

Another helpful quote from the Court’s opinion was as follows:

“An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. However, an employer who acts with the motive of avoiding an accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that an accommodation would be needed.”

religion - bibleSo what does this mean in practice for employers? Well, this case has lowered standard for religious discrimination. Employers are not required to have actual knowledge that a religious accommodation would be needed to discriminate against an applicant. If an employer simply suspects that one may be needed, which is what happened in the Abercrombie and Fitch case, and such is part of its decision to deny employment, the employer has discriminated on the basis of religion under Title VII. It is now no longer necessary for an applicant to make an actual request for an accommodation or for the employer to know for sure that an accommodation will be needed.

If you will recall, Ms. Elauf made no accommodation request. She simply wore a headscarf to an interview which the assistant manager suspected was for religious reasons (which turned out to be a correct assumption by the way). When the assistant manager passed along her observation and suspicions to her district manager, the district manager told her to deny Elauf employment on the grounds that the store could not make an exception to its dress code policies for a religious headscarf. Notice there was no actual knowledge on Abercrombie’s part that the headscarf was actually worn for a religious reason. However, the Court still found discrimination. Why? Because employers are now not permitted to base decisions not to hire on an assumption that the applicant will need a religious accommodation.

religion - buddaDon’t forget that the obligation to make a religious accommodation would still have applied if Elauf had been informed of the policy and made an actual request for an accommodation. If such were the case, Abercrombie would have needed to be able to articulate that, if it had made an exception to the policy and allowed Elauf to wear the headscarf, such would cause Abercrombie an undue burden on its business. This has been the standard for some time and employers should continue to follow it when an actual request is made. Additionally, employers will now also have to be cognizant of this new standard set forth by the Supreme Court in the Abercrombie and Fitch case.

If you have any questions about Title VII and how it applies to your workplace, drop us an email at

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.