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ABERCROMBIE'S "LOOK POLICY" FALLS IN THE FACE OF RELIGIOUS FREEDOM

Mark Brookstein of Gould & Ratner LLP (Chicago) recently drafted an article entitled “Abercrombie’s “Look Policy” Falls In The Face of Religious Freedom Under Title VII”On June 1, 2015, the United States Supreme Court held that in order to prevail in a disparate-treatment claim, an applicant need show only that her need for accommodation was a motivating factor in the employer’s decision, not that the employer had actual knowledge of her need.In 2008, Samantha Elauf, a Muslim woman, applied for a job at an Abercrombie clothing store. She was not hired by the assistant manager over concern that the headscarf worn by Elauf would violate the company’s Look Policy. Following the decision the assistant manger contacted the district manager who informed her that Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and that the assistant manager was correct not to hire Elauf.Under Title VII of the Civil Rights Act of 1964, an employer may not limit applicants for employment in any way that would deprive any individual of an employment opportunity because of that individual’s religion. Title VII defines religion to include all aspects of religious observance and practice, as well as belief. Therefore, the employer is required to accommodate the employee’s religious needs unless doing so would create undue hardship.In this case, Abercrombie satisfied the disparate-treatment provision of Title VII because it failed to hire and Elauf due to her headscarf, which constitutes religious practice. The Court reasoned that, under Title VII, the “because of” element is interpreted as a motivating factor in the employment decision. That means the applicant need only show that the protected characteristic—in this case wearing a headscarf—was a “motivating factor” in the employer’s decision.The Supreme Court rejected Abercrombie’s argument that they did not have actual knowledge that the headscarf worn by Elauf was for a religious purpose. The Court explained that Title VII does not impose a knowledge requirement. Instead, the focus is on the motive of the employer, which is a separate concept from knowledge.The Court concluded that Abercrombie’s argument asked the Court to interpret the statute incorrectly, because the disparate-treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice. Therefore, Abercrombie satisfied the disparate-treatment provision because it acted with the motive to avoid accommodating Elauf’s religious practice.So employers, take care to ensure that your hiring practices do not, as the Court warned, “make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”http://www.gouldratner.com/blog/?p=73

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