Supreme Court Rules Against Abercrombie In High-Profile Religious Accommodation Case

Authored by Whitney P. Cooney

Jun 03, 2015

The U.S. Supreme Court has ruled in favor of a Muslim woman who sued retailer Abercrombie & Fitch when the store failed to hire her because she wore a head scarf in observance of her religion. On June 1, 2015, the U.S. Supreme Court announced its decision in E.E.O.C v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015), and established that under Title VII of the Civil Rights Act of 1964, an employer carries the burden to provide a religious practice-based accommodation to a prospective employee, even when the employee does not express the need for such an accommodation.


Abercrombie, a clothing store which requires a certain “look” of its employees, established a “Look Policy” that determines how its employees must dress when working. The policy prohibits wearing any type of “cap.” The plaintiff, Samantha Elauf, wears a headscarf in accordance with the traditions of her Muslim religion. Elauf was interviewed by Abercrombie and was determined to be a qualified hire.

During the interview, the store manager correctly assumed Elauf wore the headscarf because of her religion. However, the store was concerned that Elauf would be unable to comply with Abercrombie’s “Look Policy” – specifically the cap provision – because of her desire to wear a headscarf. After upper management determined Elauf’s head scarf would violate the “cap” policy, the store decided that because wearing the headscarf would violate the company’s “Look Policy,” she could not be hired. Notably, although the store manager suspected that Elauf’s practice of wearing a head scarf was connected to Elauf’s religion, Abercrombie built its defense on the proposition that it did not have actual knowledge of the religious practice because Elauf did not expressly notify Abercrombie that her head scarf was connected to her religion.

The Equal Employment Opportunity Commission (“EEOC”) brought suit against Abercrombie on behalf of Elauf under Title VII, and the District Court granted summary judgment in favor of Elauf. However, the Tenth Circuit reversed the decision and stated that an employer cannot be held liable under Title VII for failing to accommodate a religious practice unless the employee actually informs the employer of the need for accommodation.

The Supreme Court overruled the Tenth Circuit and established that when bringing a Title VII religious discrimination claim, a prospective employee need only show that the employee’s need for an accommodation was a motivating factor in the employer’s decision. In arriving at this conclusion, the Court expressly rejected Abercrombie’s argument that an employer cannot be held liable absent a showing of actual knowledge.

What this means for employers:

Even before Abercrombie & Fitch Stores, Inc., most employers would have refrained from making an adverse hiring decision based solely on a female applicant’s decision to wear a head scarf, a practice which is commonly understood to have religious implications. However, the Court’s decision makes it clear that employers cannot avoid liability in Title VII religious accommodation cases by stating that an employee did not affirmatively request a religious accommodation prior to an adverse decision.

In some instances, employers may decline to provide a religious accommodation if the accommodation poses an undue hardship for the employer. However, employers attempting to establish an undue hardship face a significant burden, and employers are encouraged to contact legal counsel before taking an adverse action against an applicant or employee based upon a known or suspected religious practice.

If you have additional questions about appropriate and necessary hiring accommodations or any other employment-related issue, please feel free to contact Whitney P. Cooney, Christopher M. Sanders, or Karen E. Milner.

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