The United States Supreme Court, on June 1, 2015, expanded employer liability for religious discrimination in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14-86 (June 1, 2015). In this case, an applicant reported for her job interview wearing a head scarf. Abercrombie & Fitch has a dress code, designed to reflect its stores’ images, prohibiting caps. While the applicant received high enough scores on her interview to qualify her for a position, she was not hired because of her head scarf. While the interviewer suspected she might wear the head scarf for religious reasons, she did not know that was the case, and the applicant never mentioned it. The applicant was not hired because she wore a head scarf.

Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), prohibits employers from refusing to hire an applicant because of his or her religion. Title VII defines religion to include “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j).

The EEOC on behalf of the applicant brought suit, claiming that Abercrombie & Fitch failed to accommodate the applicant’s religious belief. The store argued that it could not be found to have intentionally discriminated against the applicant, unless it knew that she wore the head scarf for religious reasons. The Supreme Court held, however, that, to prove a claim of religious discrimination based on a failure to accommodate, the applicant needed to show only that the need for a religious accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge that the accommodation was for a religious purpose. Here, the parties agreed that the applicant wore the head scarf for a religious reason, and that wearing the head scarf would violate the employer’s dress code. The Court remanded the case to the lower court for further consideration.

This case expands the rights of employees and applicants to religious accommodation. It is easy to imagine situations where employees could take advantage of this new interpretation, claiming after the fact that the employee’s violation of an employer policy was based on the failure to make a religious accommodation, in order to be able bring a religious discrimination claim.

The Supreme Court here did not address or change the employer’s defense of undue hardship. Under the law, religious accommodations must be made unless the employer can prove that making the accommodation would result in an undue hardship. While such a showing can be difficult to make under the Americans with Disabilities Act, showing undue hardship for a religious accommodation is substantially easier. The Supreme Court held in Trans World Airlines v. Hardison, 432 U.S. 63 (1977) that it would be an undue hardship to require the employee to bear more than a de minimus cost in order to provide a religious accommodation. The cost need not be monetary. In Webb v. City of Philadelphia, 526 F.3d 256 (3d Cir. 2009), for example, the Third Circuit Court of Appeals, which covers Pennsylvania, upheld a police force’s dress code prohibiting head scarves, because of issues of impartiality and perceived impartiality in the community.

What Does This Mean For You? It is important that managers, as well as those individuals interviewing job applicants, are trained on religious accommodation. Most religious failure to accommodate claims deal either with issues under dress code or grooming policies, or with scheduling, and special care should be taken to ensure that proper accommodations are made. You also may want to consider providing applicants with a job description and sufficient information about job expectations, and then asking whether they can perform the duties of the position, and whether an accommodation is needed.

If you have any questions about this or any other employment or labor law issue, please contact Whitney Rahman at (717) 509-7237 or swr@blakingerthomas.com.

**This update is provided for informational purposes only and should not be construed as legal advice or as creating an attorney-client relationship where one does not already exist**