U.S. Supreme Court rules against retailer Abercrombie & Fitch in widely publicized headscarf case and allows EEOC’s employment discrimination suit to go forward


June 3, 2015

On Monday, June 1st, 2015, the U.S. Supreme Court ruled that under the disparate-treatment (intentional discrimination) provision of Title VII of the Civil Rights Act of 1964, an applicant (plaintiff) need only show that his or her need for religious accommodation was a motivating factor in the employer’s decision and need not show that the prospective employer had “actual knowledge” of the need for an accommodation.2 The Opinion underscores the need for employers to accommodate, within reason, the religious practices and beliefs of applicants and employees alike, unless such accommodation would impose an “undue hardship” on the business.

The case involved Samantha Elauf, a practicing Muslim, who was denied a job at Abercrombie & Fitch because her hijab (headscarf) would conflict with Abercrombie’s “Look Policy.” Although Elauf received a satisfactory rating as part of her interview process, she ultimately was denied employment because Elauf’s headscarf violated Abercrombie’s Look Policy, specifically a provision in the Policy prohibiting caps.3 We must underscore that the manager who interviewed Elauf and gave her a satisfactory rating, believed or suspected Elauf wore the headscarf because of her faith.

The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf alleging that Title VII of the Civil Rights Act of 1964 prohibited Abercrombie from refusing to hire Elauf because of Elauf’s religious beliefs. The case made its way to the Supreme Court and in an 8-1 decision, religion got the upper hand. The Supreme Court reversed the decision from the Tenth Circuit Court of Appeals which had granted summary judgment to Abercrombie upon concluding that an employer cannot be liable under Title VII for failing to accommodate an applicant or employee’s religious belief or practice until the applicant or employee provides the employer with actual knowledge of the need for an accommodation.

In the majority opinion’s view, the disparate treatment provision of Title VII, which forbids employers from, among others, failing to hire an applicant because of such individual’s religion, relaxes the “but-for” causation standard to prohibit even making a protected characteristic a “motivating factor” in an employment decision. More importantly, the Court ruled that the disparate treatment provision of Title VII does not impose a knowledge requirement, contrary to, for instance, the Americans with Disabilities Act of 1990’s reasonable accommodation provision.

Thus, in disparate-treatment claims based on a failure to accommodate a religious practice, the rule promulgated by the Supreme Court is the following: employers may not make an applicant’s religious practice or beliefs, confirmed or otherwise, a factor in employment decisions. Put simply, an employer’s decision motivated in part by a desire to avoid prospective religious accommodation, is violative of Title VII. Although it declined to so rule or hold, the majority opinion hints or suggests that at least a suspicion on the part of the employer that the practice in question is a religious practice, is required for the motive requirement to be met.4 Bear in mind, however, that in the context of this case Abercrombie knew or at least suspected that Elauf’s hijab was worn for religious reasons.

Lastly, the Supreme Court rejected Abercrombie’s argument that a neutral policy cannot constitute intentional discrimination. The majority opinion holds that Title VII does not demand mere neutrality with regards to religious practices, but rather gives religious practices “favored treatment.” Thus, particularly as it pertains to religious beliefs and practices, employers must think twice before making employment decisions based upon the perception that no harm is done in applying a neutral policy across the board.

If you have any questions or comments regarding the aforementioned, or if you’d like assistance to ensure that your practices and policies are aligned with the Supreme Court’s ruling, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

Juan J. Casillas Ayala
jcasillas@cstlawpr.com   |  787-523-3439

Luis F. Llach Zúñiga
lllach@cstlawpr.com  |  787-523-3496

Angel X. Viera Vargas
aviera@cstlawpr.com  |  787-523-3466

Israel Fernández Rodríguez
ifernandez@cstlawpr.com  |      787-523-3437


1 EEOC v. Abercrombie & Fitch Stores, Inc., No. 14–86, 575 U.S. ___ (2015) (Argued February 25, 2015 – Decided June 1, 2015).

2 The majority opinion was written by Justice Antonin Scalia.

3 Abercrombie’s Look Policy prohibits caps as these are too informal for Abercrombie’s desired image, although the term “caps” is not defined in the Policy.

4 While voting with the majority to reverse the Tenth Circuit’s decision, Justice Samuel A. Alito Jr., did not adopt the majority’s reasoning. “I would hold,” Justice Alito wrote, “that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.”