On June 1, 2015, the U.S. Supreme Court ruled in favor of the Equal Employment Opportunity Commission (EEOC) in a religious bias suit involving an unsuccessful Muslim job applicant who was rejected because her headscarf did not comply with the company’s dress code, even though she did not inform the company that she wore the headscarf for religious reasons. EEOC v. Abercrombie & Fitch Stores, Inc., 2015 WL 171330 (June 1, 2015). The Supreme Court determined that to prevail on a claim for religious discrimination, a job applicant must show only that the need for a religious accommodation was a “motivating factor in a challenged employment decision, not that the employer had knowledge of the need for such an accommodation.”

The EEOC, which filed a claim on behalf of the applicant, alleged that the company violated Title VII of the Civil Rights Act of 1964 by refusing to hire the applicant because she wore a Muslim headscarf pursuant to her religious beliefs, which conflicted with the company’s dress policy. Title VII prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship.

The company had reason to suspect that the applicant wore the headscarf for religious reasons, but argued that “[a]n applicant cannot show disparate treatment without first showing that an employer has ‘actual knowledge’ of the applicant’s need for an accommodation,” which the applicant failed to provide when she neither asked for an accommodation to the dress code nor mentioned her faith during her interview. The company continued by explaining that it could not have had any knowledge of the applicant’s religious beliefs simply by looking at her, and by siding with the EEOC, employers would be forced to “preemptively probe the suspected religious views of their employees.”

The Supreme Court disagreed, by drawing an important distinction between motive and knowledge. The Supreme Court reasoned that Title VII’s disparate treatment provision is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision, thereby prohibiting certain motives regardless of the state of the employer’s actual knowledge. Title VII contains no knowledge requirement; therefore, an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. As a result, the statute demands more than “mere neutrality with regard to religious practices … it gives them favored treatment, affirmatively obligating employers not to ‘fail or refuse to hire or discharge any individual … because of such individual’s’ ‘religious observance and practice.’”

Nonetheless, the Court acknowledged that an unlawful motive may not exist if an employer had no reason to suspect a religious practice. However, despite the Court determining the company suspected a religious practice in this case, it opted not to address the issue of whether actual discrimination took place and, instead, remanded the case for further consideration.

The Abercrombie decision undoubtedly increases the burden on employers during the interview process. In short, the decision leaves employers in the untenable position of being required to proactively ask applicants about the need for a possible religious accommodation during the interview process if they have any reason to suspect the applicant may need such an accommodation.