In a unanimous decision, the U.S. Supreme Court has ruled that Abercrombie & Fitch may have discriminated against a job applicant when it rejected the applicant because she wore a hijab (a Muslim head scarf) during her interview. At the time, Abercrombie had a dress code that prohibited employees from wearing hats or other head gear, and the hijab was deemed to be inconsistent with that policy. An Abercrombie manager made the decision not to hire the candidate on that basis, even though the interviewer stated that she assumed the candidate wore the hijab for religious reasons.
Abercrombie’s defense was that the candidate had never specifically stated that she wore the hijab for religious reasons, and that this meant that the candidate had never requested a religious accommodation for her attire. Abercrombie argued that it didn’t have to offer an accommodation that hadn’t been specifically requested. The Supreme Court disagreed, concluding that the applicant’s failure to specifically request religious accommodation did not prevent the applicant from successfully asserting a claim of religious discrimination if she was rejected for employment on the basis of her religious expression. Instead, the Court held that the candidate need only show that her need for religious accommodation was a motivating factor in the employer’s hiring decision.
This decision is significant because it was unanimous and the opinion was written by conservative Justice Antonin Scalia. The Supreme Court has issued numerous decisions on matters of employment law in recent years, but those decisions have rarely been unanimous and Justice Scalia has rarely been among the Justices ruling in favor of the employee. The fact that the unanimous decision was written by Justice Scalia should indicate just how strongly the Court views workplace protections for religious expression. Employers should take heed – and find a way to gently inquire about possible needs for religious accommodation without doing or saying anything to suggest that a candidate’s religious views will have a bearing on the actual hiring decision.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should be consulted regarding any specific legal issues.
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