The case is EEOC v. Abercrombie & Fitch Stores, Inc., decided on June 1. Plaintiff wanted to work for this retailer. She is a Muslim who wore a headscarf. An assistant manager said plaintiff was qualified for the position but she was concerned the headscarf would conflict with the store's dress code. While the assistant manager told the store manager that she believed plaintiff wore it for religious reasons, the store manager said plaintiff could not have the job because all head wear, religious and otherwise, violated the dress code.
The Court rules in plaintiff's favor. It says the employer does not need "actual knowledge" of the applicant's need for a religious accommodation. "An applicant need only show that his need for an accommodation was a motivating factor in the employer's decision." As Justice Scalia explains, "an individual's actual religious practice may not be a motivating factor in failing to hire, in refusing to hire, and so on." Unlike the Americans with Disabilities Act, which defines discrimination to include an employer's failure to make "reasonable accommodations to the known physical or mental limitations,” Title VII does not impose a knowledge requirement. Instead, the Court says, Title VII prohibits certain motives.
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 rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.