Employees Must Prove "Motive" Not Mere "Knowledge" in Order to Demonstrate Religious Discrimination per the U.S. Supreme Court
Miller & Martin PLLC Alerts | June 02, 2015
In a closely-watched case arising from the Tenth Circuit Court of Appeals, EEOC v. Abercrombie & Fitch Stores Inc., the U.S. Supreme Court held yesterday that an applicant or employee need not prove that an employer had "actual knowledge" of his/her need for religious accommodation in order to establish a prima facie case or the "starting elements" of a claim of religious discrimination.
The Court did not hold, however, that an applicant or employee could prove religious discrimination or win a religious discrimination case merely by showing that an employer had such knowledge.
Case Facts and Procedural History
Samantha Elauf applied and was interviewed for a job with Abercrombie back in 2008. Ms. Elauf is a Muslim and participated in the interview wearing a traditional Muslim headscarf. She was not offered a job by Abercrombie even though the assistant store manager who interviewed her indicated that she was qualified for the job.
Ms. Elauf then filed a charge of discrimination with the EEOC in 2009 alleging that she had not been hired due to her Muslim faith, which required her to wear a headscarf at all times in public. Abercrombie admitted as part of the charge response process that it had a "Look Policy" for all employees of its retail stores which prohibited the wearing of any "caps."
The EEOC believed so strongly that a violation of Ms. Elauf's religious liberty had occurred due to Abercrombie's refusal to consider making an exception to this policy as a reasonable accommodation of her Muslim faith that it agreed to file and prosecute the case itself in federal court.
Both Abercrombie and the EEOC filed motions asking the trial court to find in their favor based on the deposition testimony and other information they gained through pre-trial discovery. The trial court agreed with the EEOC that the pre-trial information indicated that Abercrombie had admitted to discriminating against Ms. Elauf based on her Muslim religious practice of wearing a headscarf. A trial was then held on the issue of damages, and Ms. Elauf was awarded $20,000.00.
Abercrombie appealed the trial court's decision to the Tenth Circuit Court of Appeals, which reversed it based almost entirely on one line of Ms. Elauf's deposition testimony in which she was asked whether she had ever actually told anyone at Abercrombie that she needed to wear the headscarf due to religious reasons and replied she had not.
The Supreme Court Decision and Reasoning
An 8-1 majority of the Supreme Court disagreed with the Tenth Circuit Court of Appeals' reasoning that an employee or applicant cannot establish the basic elements of a religious discrimination claim without being able to show that his/her current or potential employer had "actual knowledge" of his/her need for religious accommodation. (Only Justice Thomas agreed with the appellate court's decision in favor of Abercrombie to dismiss the case on this basis.)
The Court held that placing this burden on employees would make it possible for employers to avoid religious discrimination liability simply by firing an employee (or here, not hiring an applicant) based on a "suspicion" that a religious accommodation could be necessary before the employee or applicant has an opportunity to confirm or deny the same.
"It is an employer's motive not actual knowledge which is at issue." "An employer who refuses to hire someone based on a desire to avoid providing an accommodation may run afoul of Title VII even if there's no more than an ‘unsubstantiated suspicion' that an accommodation would be necessary."
The Supreme Court did not go as far as the EEOC had asked the trial court to do (and which the trial court previously had done) by finding based solely on the deposition testimony and other parts of the pre-trial record that Abercrombie had in fact discriminated against Ms. Elauf based on her religion. The case was remanded to the trial court for "further assessment" based on the Supreme Court's above-described reasoning.
What This Decision Means for Employers
What distinguishes the Abercrombie case from most others is the fact that Ms. Elauf had direct evidence of "motive;" Abercrombie had admitted that the only reason it had not hired Ms. Elauf was "concern" over her ability to comply with its "Look Policy" due to her religion.
So, while this decision will most likely prove a (second) victory for Ms. Elauf at the trial court level, for employees generally it muddies the waters, as allowing them to prove a religious discrimination claim based on "mere knowledge" actually would have lowered the standard compared to other Title VII claims. As employees cannot "prove" a race, gender or national origin discrimination claim merely by showing the employer "knew" their race, gender or national origin.
The Abercrombie decision thus affirms the proposition that applicants/employees have the burden to prove that their religion was a motive or motivating factor for the employer's decision not to hire or to discharge or otherwise take an adverse action against them, just as they must do in race, gender or national origin discrimination cases.
So, the effect of this decision on employers is basically to put religious discrimination claims on the same footing as other Title VII claims. Employers thus need to be able to put forth a reason "other than the applicant or employee's religious belief or practice" for their decision not to hire, to fire or otherwise take an adverse action against them, just as they must be able to do in order to be prepared to defend against an applicant or employee who asserts a claim that it was "really" their race, gender or national origin which motivated the decision.
Where the Abercrombie decision makes the waters murky for employers is where the employer's decision not to hire, to fire or otherwise take an adverse action against an applicant or employee is based on an observation by the employer or expression by the applicant or employee that they cannot comply with a policy or other job requirement. Abercrombie admitted that a "suspicion" that the headscarf was part of Ms. Elauf's religion was its "motive" for not hiring her in order to avoid having to try to accommodate her religion by exempting her from its "Look Policy."
The question of how employees are going to be able to show that employers have been motivated by a "suspicion" when unlike Abercrombie they do not admit this is intentionally not answered by this decision.
While 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--i.e., that he cannot discriminate "because of" a "religious practice" unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew--or at least suspected--that the scarf was worn for religious reasons.
Many commentaries which have been issued on this decision in the past 24 hours have indicated that it puts some type of new affirmative obligation on employers to now ask "why?" anytime an applicant or employee indicates that they cannot comply with a company policy or job requirement. But this is actually not the case, as the Supreme Court specifically held that
[T]he intentional discrimination provision [of Title VII] prohibits certain motives, regardless of the state of the actor's knowledge. Motive and knowledge are separate concepts. 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.
So, for example, if an applicant merely "checks a box" on the employer's application indicating that he/she cannot work weekends, the Abercrombie decision does not place an affirmative obligation on the employer to ask "why" of every such applicant before deciding not to hire them, as such "box checking" would not necessarily give rise to a "suspicion" that the applicant needs a religious accommodation. However, if in an interview an applicant (or after being hired an employee) says, "I cannot work from sundown on Friday to sundown on Saturday," this would most likely be sufficient to create a "suspicion" of the need for a religious accommodation such that if the employer then refused to hire the applicant (or to honor the employee's request resulting in the employee's discharge) the applicant (or employee) would be able to establish the prima facie or basic elements of a religious discrimination claim.
This does not mean the applicant or employee would be able to ultimately prove or win such a claim however, as the employer would still be able to argue the question of whether the applicant or employee's inability to work on weekends could have been accommodated without causing an undue burden to the employer. (The Supreme Court again intentionally did not address this portion of a religious discrimination claim, instead remanding it to the trial court to resolve in this particular case.)
On a final note, the same "undue burden" language is used to describe an employer's assessment under Title VII as to whether a religious accommodation is "reasonable" as is used regarding this assessment for a disability accommodation under the ADA. However, it is important to note that courts have held that the "undue burden" employers must show relating to a religious accommodation can be "anything beyond de mininis," which is a lower threshold than an employer would have to establish in order to be able to deny a disability accommodation under the ADA. So, even though the regulatory language is the same, an employer's actual burden to establish that a religious accommodation is not "reasonable" is lower/easier to meet than for disability accommodations. The Abercrombie decision again did not change this standard.
As always, should you have any questions about this new Supreme Court decision or its implications on your workplace practices or policies, please feel free to contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.