Here in the 10^th Circuit, where Colorado is located, it was previously considered a requirement by the courts that discrimination claims under Title VII based on a religious accommodation required the employer to have actual knowledge of the religious accommodation request from the employee or prospective employee. In practice, this would mean that an employee or applicant would have to ask the employer for such accommodation before they could be liable for discriminating against them for this reason. At first glance, this sounds like it makes sense, but in practice, things are more complex. The Supreme Court recently reversed the 10^th Circuit’s approach in an 8-1 opinion in the case of E.E.O.C. v. Abercrombie & Fitch Stores, Inc.

You may have heard of some of these cases in the news, as there have been a few. The gist of the facts from these different cases is that an applicant wearing a headscarf, as part of their religious beliefs, was not hired by Abercrombie, despite being qualified. The reason for this was because of the “Look Policy” that Abercrombie has for all of its employees, which prohibits “caps” to be worn by employees (there is no definition for caps in the policy but Abercrombie states this covers anything covering up a person’s head). Note however, that Abercrombie has since altered their Look Policy to allow for such religious headwear.

In the recent case, there was no discussion between the applicant and Abercrombie regarding her wearing the headscarf, other than that she was aware that Abercrombie had a “Look Policy” (but no details of the policy were discussed). The applicant never asked if the headscarf was okay and Abercrombie never asked the applicant if they would be wearing the headscarf on the job. Abercrombie simply assumed that the applicant would be wearing it, and did not hire her, since it would violate the Look Policy. The applicant won in district court, but the 10^th Circuit ruled in favor of the employer. The 10^th Circuit held that an applicant must communicate the need for a religious accommodation to an employer in order for the employer to be liable for discrimination. On review, the Supreme Court held instead that the need (or presumed need) for a religious accommodation only has to be a motivating factor for their decision not to hire the applicant, and that no actual knowledge of the need for such accommodation is necessary.

What does this mean exactly? No actual knowledge is required? Basically speaking, what the court seems to be telling us is that there is a clear distinction between knowledge and motive, and that employment decisions can be motivated by something, despite the employer not knowing with complete certainty as to its truthfulness. Here’s some insight from the Court’s opinion:

“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.”

Here’s an example provided by the Court:

“…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…employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.“

What does this mean for businesses? It is simple, do not discriminate based on an applicant‘s (or employee’s) religious beliefs, or even based on religious beliefs that you think they have (even if you don’t know for sure). If you suspect that an applicant (or employee) will need a religious accommodation, and you make an employment decision motivated by this, then you have discriminated against that person under Title VII.

If you have questions about how to go about making employment decisions for your business in compliance with the law, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.