In an eight to one decision, the United States Supreme Court reversed a Court of Appeals decision and reinstated a $20,000.00 jury award against Abercombrie and Fitch for religious discrimination. Abercombrie and Fitch had refused to hire Samantha Elauf, a seventeen year old Muslim woman who wore the traditional hijab or head scarf. Abercombrie and Fitch said her appearance clashed with its corporate dress code.
In announcing the Court’s decision from the bench, Justin Antonin Scalia said, “This is really easy.” He said Abercombrie and Fitch at least suspected the Ms. Elauf wore the head scarf for religious reasons. The decision not to hire Ms. Elauf was motivated by a desire to avoid accommodating her religion (a requirement under federal law). It was not a defense that Ms. Elauf never explicitly stated that she wore the hijab for religious reasons, nor a defense that she did not ask for a religious accommodation. Title VII prohibits religious discrimination whether the employer acts based on “actual knowledge, a well founded suspicion, or merely a hunch.” The employer’s motive is the key inquiry, not the employer’s knowledge. For instance an employer may know that attire is worn for religious reasons, but as long as an employment decision is not motivated due to that attire, no religious discrimination occurs. Conversely, where an employer makes a decision based on religious attire, religious discrimination occurs even where the employee does not affirmatively inform the employer that the attire is worn for religious purposes.
Given the diversity of religious expression, employers should exercise caution in making employment decisions that could be perceived as based on religious expression. Under the Abercombrie and Fitch decision, employers take a risk if they do not inquire as to the reason a person wears a scarf, a beard, or religious attire. If a person wears clothing for a recognized religious purpose then employers have an obligation under state and federal law to reasonably accommodate such religious expression.
