On June 1, 2015, the United States Supreme Court held that the retailer Abercrombie & Fitch violated Title VII by failing to hire a job applicant due to her religious practice of wearing a hijab (a Muslim headscarf). Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. __ (2015). Denial of employment is unlawful if the job applicant's need for a religious accommodation was a motivating factor in the employer's decision to not hire her. An employer's actual knowledge of the need is not required. Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination based on a variety of protected characteristics, including religion. For purposes of a Title VII employment discrimination claim, religion includes a religious practice, observance or belief. Title VII makes it unlawful for a prospective employer to refuse to hire a job applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, even if the applicant has not informed the prospective employer of the need for the accommodation.
In the Abercrombie case, a 17-year-old Muslim women who wore a hijab as a religious practice applied for a sales position at an Abercrombie retail store, but was denied employment based on the company's "look policy" (dress code, which did not allow any type of head-wear). In a Title VII failure-to-hire claim based on religious discrimination, a job applicant must prove that the employer failed to hire her because of her religion. A protected characteristic cannot be a motivating factor in any employment decision. In an 8-to-1 decision delivered by Justice Scalia, the Supreme Court ruled in favor of the EEOC (who filed the lawsuit on behalf of the job applicant), because the company had unlawfully refused to hire the applicant on the basis of her religious practice. The Supreme Court's decision in Abercrombie highlights two significant precedents: (1) the legal standard for causation in a Title VII disparate treatment claim is only that the protected characteristic is a motivating factor in the employment decision; and (2) an employer's actual knowledge of a job applicant's need for a religion-based accommodation is not required for a Title VII failure-to-accommodate claim. This highly publicized new Supreme Court employment law decision is reverberating throughout the employment law and human resources communities.