Equal Employment Opportunity Commission v Abercrombie & Fitch Stores (2015 SCOTUS))

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Title VII of the Civil Rights Act[1] prohibits employers from discriminating against employees or applicants with respect to employment compensation, terms, conditions, privileges or opportunities on the basis of an individual’s race, color, religion, or national origin. In Equal Employment Opportunity Commission v Abercrombie & Fitch Stores, inc.,[2] the United States Supreme Court considered whether employers could be liable under Title VII for refusing to hire applicants on the basis of a religious observance or practice if they had no direct knowledge that applicants required accommodation.


Samantha Elauf was a practicing Muslim who wore a headscarf every day as part of her understanding of her religion’s requirements. She applied for a position at an Abercrombie & Fitch store where the assistant manager interviewed her. During the interview, neither Elauf nor the assistant manager expressed reservations regarding a potential conflict between the headscarf and the company’s Look Police: a dress code premised on Abercrombie’s East Coast Collegiate style that prohibited “caps”. The assistant manager scored the interview high enough to recommend Elauf for hiring, until the supervision she contacted informed her that the headscarf would violate the Look Police. Elauf was consequently not hired. The Equal Employment Opportunity Commission sued Abercrombie on her behalf.


Writing for the majority, the late Justice Antonin Scalia stated that an employer would be liable under Title VII if an applicant could show that his or her “need for an accommodation was a motivating factor in the employer’s decision”.[3] Moreover the provision for disparate-treatment does not require that the employer have actual knowledge of the need for an accommodation; an employer would be liable under Title VII if its hiring practices are conducted with the aim of avoiding accommodation and are based on unsubstantiated suspicions that accommodation might be necessary.[4]

Moreover Title VII does not demand mere neutrality; as the Court notes, it imposes an affirmative obligation to accommodate religious observances and practices.[5]

The Supreme Court sent the case to lower courts to determine whether Elauf had been discriminated against.


As Gurjot Kaur, senior staff attorney of the Sikh Coalition notes, the Supreme Court’s decision affirms the basic right to practice one’s faith freely,[6] but it nevertheless leaves several important questions unanswered and raises some practical issues. Justice Scalia declares that employers will not be liable under Title VII by refusing to hire applicants provided that a desire to avoid accommodations is not the motive behind the refusal.[7]

Are employers now obligated to disclose motives behind their hiring practices, at the very least, upon request from applicants who were not selected? Or more narrowly upon request from applicants from religious minority groups who were not selected? On the one hand, the Court’s silence on this matter should be seen positively as it afford the trier of fact a measure of discretion to decide how to adjudicate cases before them. Nevertheless on the other hand, a lack of guidance on this issue could inevitably lead to applicants increasingly going to court to seek redress for employment discrimination, whether it is justified or not. In future cases, a court may have to address whether employers are obligated to disclose why employees were not hired, but now the Equal Employment Opportunity decision represents a positive step in the right direction.

Workplace religious discrimination against Muslims have increased by 143 percent since 2001 and in 2011, it accounted for 21.8 percent of charges by the Equal Employment Opportunity Commission.[8] A review of case studies conducted by Ravitch, Bitkker and Idleman suggests that Muslims have usually been unsuccessful in pursuing religious accommodation requests through the court system.[9] Perhaps at least now, this decision will reverse this unfortunate trend of discriminating on the basis of religion.




[1] Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 241 (1964)

[2] Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, inc. 575 U. S. (2015)

[3] Id at 3.

[4] Id.

[5] Id.

[6] Adam Liptak, “Muslim Woman Denied Job Over Head Scarf Wins in Supreme Court”, The New York Times (1 June 2015), online: <http://www.nytimes.com/2015/06/02/us/supreme-court-rules-in-samantha-elauf-abercrombie-fitch-case.html?_r=0&gt;

[7] See Equal Employment Opportunity Commission, supra note 2.

[8] EEOC Religion-based charges, available at: http://eeoc.gov/eeoc/events/9-11-11_religion_charges.cfm

[9] Frank S. Ravitch, Boris I. Bittker & Scott Idleman, Religion and the State in American Law (New York: Cambridge University Press, 2015).





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