May 31, 2015 Supreme Court: Title VII Discrimination Does Not Require Request For Accommodation

The Supreme Court ruled today that an employer may be liable under Title VII for failing to accommodate a religious practice, even if the employer does not actually know that the employee or job applicant needs an accommodation.

In this case, Abercrombie & Fitch rejected an applicant because it interpreted its "Look Policy" – which required employees to dress according to a particular store's "style," and precluded the wearing of "caps" – as banning all headwear, religious or otherwise.  The applicant, who wore a headscarf for religious reasons, neither disclosed the reasons why she wore her headscarf nor requested an accommodation.  In applying its Look Policy, however, Abercrombie suspected that her headwear might have been religious in nature and rejected her application, despite rating her as otherwise qualified.


Title VII of the Civil Rights Act of 1964 prohibits an employer from refusing to hire an applicant because of her religion, or to avoid accommodating a religious practice that it could accommodate without undue hardship.  The issue presented to the Supreme Court was whether this prohibition only applies where an applicant has disclosed the need for an accommodation.  Abercrombie argued that it could not have refused to hire the applicant in order to avoid accommodating her religious practice if no accommodation was ever requested.

The Supreme Court held that motive, not knowledge, was the applicable test.  An employer violates Title VII if its desire to avoid accommodating the applicant is a motivating factor in the employer's decision.  Even if the employer thinks or suspects, but does not know, that an applicant requires an accommodation, and acts on that suspicion, that can be enough to establish an improper motive.

What This Means

This case presented a relatively straightforward scenario – wearing a headscarf that the employer suspected was worn for religious purposes.  Other fact scenarios will not be so clear cut.  Still, employers must be vigilant to ensure that an employee or job applicant's protected characteristics – assumed, suspected or otherwise – play no role in hiring or other employment decisions.  Also, employers would be wise to remember that the neutral application of a policy (such as Abercrombie's prohibition on all headgear) can still be discriminatory because certain types of employees are entitled to more favorable, not just facially equal, treatment.

In addition to Title VII, California employers must also comply with state anti-discrimination laws, which generally place even higher burdens on employers. See prior E-Update here. Abercrombie's conduct would almost certainly been unlawful under California's Fair Employment and Housing Act (FEHA), where anti-discrimination and accommodation obligations are more strict.

This E-Update was authored by Matthew Schenck.  For more information, please contact Mr. Schenck or any other Paul, Plevin attorney by calling (619) 237-5200.