On Monday, Abercrombie & Fitch faced a major defeat in its interpretation of religious discrimination law and employees of faith, especially visibly religious minorities, breathed a collective sigh of relief. The U.S. Supreme Court rejected the retailer's argument that an employer is only liable for failing to accommodate religious practices if it had actual knowledge of religious beliefs. Instead, the high court determined that what really matters is the employer's motivation in rejecting an otherwise qualified job applicant.
At first blush, it appears counterintuitive that an employer is liable even if it did not actually know that its workplace policy (such as a "no headwear" policy) conflicts with a job applicant's (or employee's) religious practice (such as wearing a Sikh turban). That is, until you consider that "lack of knowledge" is a convenient legal defense used by employers to avoid liability for not wanting to hire a visibly religious applicant.
It is a rare case where an employer actually has no idea or inkling that its workplace policy may conflict with a visibly religious applicant's practice. The Supreme Court appeared to recognize that in its decision, noting that what was more important for the purposes of liability under Title VII of the Civil Rights Act of 1964 was whether the employer was motivated by a desire to avoid accommodating certain religious practices.
This is a game changer for religious liberty in the workplace, especially for turbaned and bearded Sikh-Americans who have faced increased violence since 9/11, are frequently mistaken for members of Al Qaeda or the Taliban, and are subject to greater levels of employment discrimination.
For instance, imagine that Sarabjit, a turbaned and bearded Sikh man, tries to get a position as a pharmaceutical sales representative at a company that requires its employees to be "clean-shaven." The Human Resources representative decides it would be too much of a hassle to try to accommodate his beard, which he suspects, along with the turban, might be religious. Perhaps this process requires approval from corporate, or perhaps the employer must go through a plethora of procedures. Perhaps the company is worried about how Sarabjit's religious appearance will impact its clients and the company's image. The HR representative decides not to bring up its "no beard" policy at the interview and fails to hire the otherwise qualified Sarabjit to avoid the inconvenience.
After the Supreme Court decision this week, the pharmaceutical company is far more likely to be liable for intentional religious discrimination. Religion cannot be a motivating factor in a company's hiring decision. Thus, in our example, because the employer suspected that the turban and beard were religious articles, and he failed to hire the otherwise qualified applicant because he did not want to go through the hassle of accommodating his religion, under the Supreme Court's recent decision, the pharmaceutical company will likely be liable for intentional religious discrimination. This unprecedented interpretation gives visibly religious minorities added protection in the hiring process.
Additionally, the Supreme Court has now made it much harder for employers to successfully use defenses aimed at keeping those who look "different" out of the workplace. This includes the "neutral workplace policy" defense, such as uniform and grooming standards that apply to every employee. Sure, these policies sound valid and nondiscriminatory at first. After all, like Justice Scalia noted, an employer has the right to impose a "no headwear" policy across the board and on paper, such policies don't appear to target any particular group. That is, until you consider that in practice, employers use neutral policies to keep out entire communities from the workplace, and often based on unsubstantiated (and even prejudicial) concerns about its brand, customer preference, or other business matters.
Will you really stop going to Abercrombie because a delightful and stylish Muslim woman in a colorful hijab is ringing you up? No, of course not.
To understand this neutral policy defense, consider another case involving Abercrombie in California, where it unsuccessfully tried to defend its termination of a hijab-wearing Muslim applicant, Umme-Hani Khan, by claiming that accommodating her headscarf, which conflicted with its "no-caps" policy, would be an "undue hardship." Under Title VII, an employer can avoid liability by demonstrating undue hardship in accommodating a religious practice. Abercrombie's undue hardship argument about maintaining its brand and enforcing its Look Policy, however, fell dead in the water. The trial court found that:
"Abercrombie has failed to produce even one document, survey, customer complaints, sales report or financial statement linking an employer's non compliance with the Look Policy with an adverse impact on its brand and or bottom line, or as the root cause of some sort of customer confusion."
Of note in Ms. Khan's case, Abercrombie had no problem granting accommodations in the past to its Look Policy for employees maintaining secular beards, or wearing a baseball cap, or a yarmulke. This made its termination of Ms. Khan, a Muslim, and its later attempts to hide behind a "neutral rule" when facing allegations of discrimination even more dubious.
Now, as a result of Ms. Elauf's victory in the Supreme Court, courts will even more closely scrutinize employers across the country. Any decision not to hire a visibly religious applicant or to fire an employee - even if based on a grooming or look policy- may now be evidence of intentional religious discrimination.
The work isn't over yet. The law still has plenty of wiggle room for discrimination. In most states, an employer need only demonstrate minimal undue hardship to escape liability, and current interpretations of Title VII in some jurisdictions even allow for religious segregation of visibly religious employees to "backroom" (out of sight) positions.
Nonetheless, by eliminating the knowledge requirement and recognizing that "neutral" workplace rules can also be evidence of intentional discrimination, the Supreme Court has tossed out a major legal loophole in religious discrimination law. The decision underscores the true spirit and intent of Title VII - to actually prevent discrimination in the workplace and examine the motives of employers.
Ms. Elauf's work is done. Her case joins a long line of recent Supreme Court decisions aimed at preserving and promoting religious liberty and diversity in America and we couldn't be more thrilled that she won.
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