Broader Protection Against Workplace Bias

June 26, 2015

In EEOC v. Abercrombie & Fitch Stores, Inc., decided June 1, 2015, the U.S. Supreme Court held that job applicants – and, by extension, employees – have broad protection against workplace bias. Employers must take notice of this new interpretation of a federal employee rights law.

Clothing retailer Abercrombie & Fitch had a neutral “Look Policy” that forbade employees wearing “caps.” Samantha Elauf applied for a job while wearing a headscarf or hijab of the type worn by many Muslim women. The interviewer rated Elauf as qualified for hiring, but was unsure whether the scarf contravened the company’s Look Policy. The interviewer informed the district manager that she believed Elauf wore the scarf for religious reasons, and was directed not to hire Elauf because the scarf would violate the Look Policy. The Equal Employment Opportunity Commission sued on Elauf’s behalf, arguing that the company violated Title VII.

Title VII (42 USC 2000e-2) makes it unlawful to “to fail or refuse to hire or to discharge any indi­vidual, or otherwise to discriminate against any indi­vidual with respect to his compensation, terms, condi­tions, or privileges of employment, because of such in­dividual’s race, color, religion, sex, or national origin.” Because religion – which, according to its Title VII definition, includes a religious practice – was a motive for refusing to hire Elauf, the company violated the law.

The Court said that Elauf did not need to ask for an accommodation, and the company did not have to know that an accommodation might be needed. The Court contrasted the language of Title VII with the ADA, which makes it discriminatory for an employer to fail to make “reasonable accommodations to the known physical or mental limitations” of an applicant or employee.

The Court said that “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,” and that “a request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.”

The Court rejected the notion that a neutral policy (prohibiting hats and other head coverings) precluded liability, finding that “Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of such individual’s ‘religious observance and practice.’”

For more information about this case or other employment law issues, contact Lisa E. Pizza at (419) 252-6227 or