As the Supreme Court toughens religious-accommodation rules, 5 ways employers can avoid trouble.

Yesterday, the United States Supreme Court, in an 8-1 decision, ruled that an employer that does not know that a job applicant may need a religious accommodation can discriminate against that job applicant. All that matters are the employer’s motivations.

Allow me to explain.

It’s not what you know; it’s what motivates you.

In EEOC v. Abercrombie & Fitch, the national apparel chain declined to hire Samantha Elauf, a practicing Muslim, because she wore a headscarf. Ms. Elauf wore the headscarf for religious reasons, but never told Abercrombie that she needed a religious accommodation for her headscarf. Still, Abercrombie assumed that Ms. Elauf wore the headscarf because of her religion. Ultimately, Abercrombie did not hire Ms. Elauf because her headscarf conflicted with the company’s “Look Policy,” as would all other headwear, religious or otherwise. So, the EEOC sued Abercrombie on Ms. Elauf’s behalf.

Abercrombie’s main argument was that it never knew for sure that Ms. Elauf needed a religious accommodation. To that, the Supreme Court stated that actual knowledge is immaterial. Rather, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

The Supreme Court further clarified that a failure-to-accommodate claim is essentially a claim for disparate treatment (in non-lawyer-speak: “intentional discrimination”).

And, while the plaintiff has the burden of proving that his religion motivated the defendant-employer, that doesn’t seem so daunting now in a failure-to-accommodate case. Indeed, “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.”

Takeaways for employers.

  1. Train your hiring managers. Yes, I’m starting with the lowest-hanging fruit. Anyone with the ability to impact a hiring decision must heed the Supreme Court’s guidance; namely, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
  2. Take the initiative. Where the company believes that a job applicant may require a religious accommodation, it should consider articulating the essential requirements of the position to the applicant and ask — with waiting for a request — whether the applicant requires an accommodation.
  3. Support your undue hardships. An accommodation can pose an undue hardship on the employer’s business. Yesterday’s decision doesn’t negate this defense. But, undue hardship has to be something more than, “Hey, we have a neutral look policy and hiring you would infringe upon that.” How much more, we do not know. Plus, there is no one-size-fits-all approach. Still, the bar is low for showing undue hardship for religious accommodations. Don’t raise the bar. Instead, be prepared to clearly articulate that undue hardship (e.g., cost, safety, whatever it may be), preferably, before you get sued.
  4. Document hiring decisions. Justice Scalia closed the majority opinion by noting that Title VII mandates favorable treatment for individuals with sincerely-held beliefs. That is, an employer cannot “fail or refuse to hire or discharge an individual . . . because of such individual’s religious observance and practice.” However, the law does not mandate hiring an individual who needs a religious accommodation. If you choose not to hire someone whom you believe may need a religious accommodation, make sure that it’s because there is another more-qualified candidate for the job (or another legitimate business reason for not hiring that candidate). And document that clearly.
  5. Disability-accommodation cases are different. The Americans with Disabilities Act is explicit that a failure-to-accommodate claim under the ADA requires that the employer know that the plaintiff requires an accommodation.


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