The plaintiff is a Muslim and wears a headscarf. She applied to work at Abercrombie & Fitch which has a Look Policy that prohibits employees from wearing caps. She met all of the qualifications for the position for which she applied. The store manager who interviewed the plaintiff was concerned that the headscarf would conflict with the Look Policy and asked her supervisors. The store?? manager?? told?? the?? district?? manager?? she believed the plaintiff wore the headscarf for religious reasons. The district manager said the headscarf would violate the Look Policy and directed the store manager not to hire the plaintiff. The EEOC sued Abercrombie for violating Title VII. The district court granted summary judgment to the EEOC. The Tenth Circuit reversed because the EEOC failed to prove Abercrombie & Fitch knew the plaintiff needed a religious accommodation. The EEOC appealed.

The Supreme Court reversed 8-1. In an opinion for seven members of the Court, Justice Scalia held that a plaintiff need prove only that her need for a religious accommodation was a motivating factor in the employer?s actions. She need not prove the employer actually knew she needed the accommodation. Motive and knowledge are different. An employer who has knowledge of the employee?s need for accommodation does not violate Title VII by refusing to hire the applicant for some other reason. Conversely, ?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.? Therefore, an employer may not make an applicant?s religious practice, confirmed or not, a factor in employment decisions. The majority left open whether the statute imposed liability where the employer does not suspect the practice in question is religious in nature.

The Court rejected Abercrombie?s argument that failure to accommodate claims can only be raised as disparate impact cases. The Court also disagreed that the statute only prohibits employer policies?? that?? treat?? religious?? practices?? less favorably than similar secular ones. Justice? Alito? concurred? in? the? judgment.? He would have held that an employer may not take adverse action against an applicant or employee because of any aspect of his/her religion unless the employer demonstrates it cannot reasonably accommodate the practice without undue hardship. Justice Alito would have required the employee prove the employer knew the practice was for religious reasons, here the evidence was sufficient to survive summary judgment. Justice Alito would not have required the plaintiff prove either a failure to accommodate or that the employer took adverse action because of the religious nature of the practice.

Justice Thomas dissented. He agreed with the Court ?there ?is ?no ?claim? for ?failure ?to accommodate apart from disparate treatment or disparate impact. He would have held that there is no Title VII liability for adverse actions took pursuant to a facially neutral employer policy. Under such a circumstance there has been no ?intentional discrimination.?

EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. –, 115 S. Ct. 2028 (6/1/15).