EEOC v. Abercrombie & Fitch: In Title VII Disparate Treatment Action, Job Applicant Need Not Show that Employer Actually Knew of Need for Accommodation or that Applicant Requested Accommodation

Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The question presented is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation. 

EEOC v. Abercrombie & Fitch Stores, Inc. (6/1/15) ___ U.S. ___.

Samantha Elauf, a practicing Muslim who wears a headscarf for religious purposes, applied for a job at Abercrombie & Fitch (A&F). A&F staff assumed that Elauf wore the headscarf for religious purposes, but they did not know for sure and they did not ask. A&F rejected Elauf, believing her wearing a headscarf at work would violate its "Look Policy." 

The EEOC sued on Elauf's behalf, alleging that A&F violated Title VII. The trial court granted summary judgment for Elauf on liability, a jury awarded her damages, and the court entered judgment. The Tenth Circuit reversed, holding that A&F could not be liable because it did not know if Elauf actually needed a religious accommodation. 

The US Supreme Court granted certiorari and reversed the Tenth Circuit, holding that a plaintiff may prevail in a Title VII disparate treatment action without showing that the defendant had actual knowledge of his or her need for a religious accommodation. Instead, an employer may be liable "even if he has no more than an unsubstantiated suspicion that accommodation would be needed" and even if the applicant does not request religious accommodation.

The Court rejected the argument that a claim based on an applicant's religious practice must be raised as a disparate impact claim. "[R]eligious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated."

An employer may be liable even if its policies treat religious practices no less favorably than similar secular practices. 

Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, 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.” An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

Justice Scalia wrote the opinion, with Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joining. Justice Alito wrote a concurring opinion, and Justice Thomas dissented. The opinion is available here. 

Rehmani v. Superior Court: Court Reverses Summary Judgment in National Origin Discrimination Action

In Rehmani v. Superior Court (Ericsson, Inc.) (3/29/12) --- Cal.App.4th ---, plaintiff Mustafa Rehmani filed suit against his former employer, Ericsson, and several co-workers, alleging that he suffered harassment based on his Pakistani national origin and Muslim religious beliefs. The trial court (Santa Clara County Superior, Hon. Kevin McKenney) granted Ericsson's motion for summary adjudication of Rehmani's harassment claims, finding that "Plaintiff was not subjected to unwelcome harassment based on religion and/or national origin, and/or the harassment did not unreasonably interfere with his work performance by creating an intimidating, hostile, or offensive work environment." Rehmani sought a writ of mandate, and the Court of Appeal reversed.

After reviewing the black letter law on FEHA harassment claims, the Court stated the issue as "Whether in this case Rehmani's employer failed to take appropriate steps to curb the verbal abuse he allegedly suffered." Slip op. at 7.

The Court reviewed in detail Rehmani's allegations, which the Court summarized as follows:

Rehmani generally alleged that [his co-workers], all Indian, were frequently rude, dismissive, and hostile toward him because he was a Pakistani and a Muslim. At first the "hostility" of these three took the form of unwillingness to help him with his projects. But it became more severe and "overtly discriminatory" following the November 2008 attacks in Mumbai, India by Pakistani terrorists. Rehmani further alleged that management had disregarded his complaints about this behavior.

Slip op. at 7. Rehmani alleged several specific incidences of alleged harassing behavior, including a co-worker's stating that Pakistan should be blown up because it is full of terrorists, another co-worker asking him if he was going to "blow him up," and other co-workers stating that Rehmani was "celebrating 9/11 and planning terrorist attacks." Rehmani alleged that he complained repeatedly to management, to no avail.

A jury might agree with Ericsson that none of the alleged acts by [his co-workers] was based on Rehmani's national origin or religion, and such a conclusion would refute the assertion of Ericsson's liability in the first two causes of action. Or a jury might determine that Ericsson was not liable for the hostile work environment Rehmani allegedly experienced because Daftari adequately responded to Rehmani's complaints about Ghevaria and others. But considering these employees' conduct in the overall context of Rehmani's allegations of hostility by Indian employees toward non Indians, we cannot determine as a matter of law that the evidence supplied by Ericsson establishes that Rehmani will not be able to convince a trier of fact that he experienced a hostile environment and that his reports of mistreatement were ignored by his supervisor. His claim that he suffered emotional harm, physical illness, and loss of his ability to do his work effectively has not been challenged by Ericsson.

Slip op. at 14.

Rehmani offered evidence of a larger picture than just a few interpersonal squabbles. His declaration, together with testimony from coworkers, suggests rudeness, taunting, and intimidation from Indian engineers toward their non-Indian colleagues. Rehmani's evidence in support of his discrimination claims -- notably Ericsson's favoritism toward Indian engineers in hiring, promotions, salary increases, and work assignments and the managers' practice of assigning non-Indian employees to tasks that help the Indian employees look impressive -- may also be relevant in proving a hostile workplace.

Slip op. at 14-15.

The Court concluded that a trier of fact would have to determine whether Rehmani's claims have merit or not, as Rehmani had presented sufficient evidence to survive summary adjudication.

The opinion is available here.