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Vedder Thinking | Articles U.S. Supreme Court Issues Religious Discrimination Decision


Reader View

The U.S. Supreme Court ruled yesterday that summary judgment was improperly granted in favor of Abercrombie & Fitch Stores, Inc. on a religious discrimination claim stemming from Abercrombie's refusal to hire a practicing Muslim who wore a headscarf during her job interview. The EEOC brought the case on the applicant's behalf, alleging that Abercrombie violated Title VII of the Civil Rights Act of 1964. The case, EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 14-86 (June 1, 2015), has been closely watched by observers because of its potential to resolve a circuit split over whether an applicant or employee must explicitly request an accommodation or whether it is enough that the employer has notice that an accommodation is needed.

The Decision

The Supreme Court reversed summary judgment in favor of Abercrombie and remanded the case, finding that the retailer may have unlawfully discriminated against the applicant when it refused to hire her because the headscarf was contrary to its "Look Policy" that prohibited wearing "caps." Abercrombie had argued that the applicant could not make a claim of unlawful religious discrimination because it could not have known of her need for a religious accommodation just by looking at her, and, in any event, she never notified Abercrombie that she wore her headscarf for religious reasons and would need a reasonable accommodation under Abercrombie's dress code.

The Court rejected Abercrombie's arguments and held that to prevail on a disparate-treatment claim, an applicant or employee needs to show only that her religious practices or her need for accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of her need for a reasonable accommodation. The Court explained that the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: "An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions."

The Court also rejected Abercrombie's argument that its dress code was neutral on its face in prohibiting caps and, therefore, could not constitute intentional discrimination. The Court explained that Title VII gives religious practices "favored treatment" and requires otherwise-neutral policies to "give way to the need for an accommodation."

Diving Deeper: How Does This Decision Impact Your Business?

The Supreme Court's ruling is significant because it shows that applicants and employees may support disparate-treatment claims based upon a need for religious accommodation without establishing that they requested the accommodation or even that the employer knew of the need for the accommodation or its religious underpinning.

Employers should examine their religious accommodation policies and procedures, as well as their treatment generally of applicants and employees who may have religious needs that impact their ability to perform a job or otherwise adhere to company policies. Employers should not make personnel decisions based on suspicions about religious requirements, and should discuss possible religious-based needs with applicants or employees, as exceptions and accommodations may be required to comply with Title VII and other antidiscrimination laws.

Keeping the Conversation Going

To discuss what this decision could mean for your company, please contact a member of our Labor and Employment practice area or the Vedder Price attorney with whom you have previously worked.

If you have any questions about the issues covered in this Bulletin, please feel free to contact one of the two authors: Jonathan A. Wexler at +1 (212) 407 7732 or, Andrew Oppenheimer at +1 (312) 609 7664 or


Jonathan A. Wexler