Employers and employees alike may suffer severe misunderstandings about employment discrimination law.

The recent Supreme Court case of E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2031, 192 L. Ed. 2d 35 (2015), pinpoints one such misunderstanding.

Most employers and employees know that Title VII of the Civil Rights Act of 1964 prohibits an employer from refusing to hire a job applicant on the basis of religion.  What employers and employees misunderstand, though, is whether this applies only where the employer has knowledge of the applicant’s religion.


In the case of E.E.O.C. v. Abercrombie & Fitch Stores, Inc, the EEOC sued on behalf of Samantha Elauf, a practicing Muslim, who applied for a position in an Abercrombie store.  At her job interview, Ms. Elauf wore a headscarf, as she usually does consistent with her religion’s requirements.  Ms. Elauf received a rating that qualified her to be hired, however, the interviewer was concerned that Ms. Elauf’s headscarf would conflict with the store’s “Look Policy.”

The “Look Policy” prohibits “caps”—a term the Policy does not define—as too informal for Abercrombie’s desired image.

The interviewer spoke with the store manager to clarify whether the headscarf was a forbidden “cap.”  The interviewer received no answer so she approached the district manager.  PAY ATTENTION – KEY FACT: The interviewer informed the district manager that she believed Ms. Elauf wore the headscarf because of her faith.   The district manager told the interviewer that Ms. Elauf ’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed the interviewer not to hire Ms. Elauf.


In discussing the case, the Supreme Court pointed out that the law does not impose a knowledge requirement.

The law states that an employer must reasonably accommodate an employee’s religion, without undue hardship on the business.

On the other hand, it should be noted that the Americans with Disabilities Act prohibits an employer’s failure to make “reasonable accommodations to the known physical or mental limitations” of an applicant.

Title VII contains no such limitation.

Instead, the intentional discrimination prohibited by Title VII covers certain motives, regardless of 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.

Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.


Thus, the Court stated, the rule is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.


If you have further questions regarding this article or if you believe that your employer – or employee – may implicate this situation, contact the experienced employment lawyers at Luchansky Law today.