The ruling, which was 8 to 1, with Justice Thomas dissenting (in part), was decided on 6/1/15 [2015 U.S. LEXIS 3718]. If you read it too quickly, you might think it’s your typical religious accommodation case --- it’s not. And forgive me at the outset for the length of my discourse below --- there are some complications in this case that might not be obvious on a quick read. As a starting point, the typical religious accommodation case uses specially crafted adverse impact rules that apply only to religion. Specifically, an employer may have a facially neutral policy (e.g., requirement to work on Saturdays) that adversely impacts individuals whose sincerely held religious beliefs prohibit them from working on that day because it is their Sabbath.
For example, In TWA v. Hardison (1977) [432 U.S. 63], Hardison, a Seventh-day Adventist (a Saturday religion) requested that TWA arrange swaps with other workers so that he could observe his Sabbath. The problem was that there was a seniority policy that dictated the pecking order for exclusion from weekend work. Hardison requested that supervisors fill in for him; a nonstarter. Hardison then requested that TWA pay for a temporary replacement for Saturdays. The Supreme Court rejected these requests on grounds that (1) TWA’s seniority system was bona fide (BFSS), thus protecting the rights and privileges of more senior personnel; and (2) that payment for a temporary replacement would impose undue hardship on the company, as it would require extra (or more than de minimis) financial costs. Other landmark cases illustrating the reasonable accommodation scenario include Brener v. Diagnostic Center Hospital (1982) 671 F.2d. 141} and Ansonia Bd. of Education v. Philbrook (1986) [479 U.S. 60].
That said, not only is EEOC v. ANF not a typical adverse impact case, it’s not even a typical disparate treatment case. In a typical disparate treatment case, the plaintiff must prove that a protected class factor (e.g., race, sex, religion, national origin, age) is the “but for” reason (i.e., the only or primary reason) for not being selected. In the present case, the Supreme Court ruled that the protected class factor has to be a “motivating factor”, which is the criterion in a Title VII mixed-motive case – go figure.
The facts in EEOC v. ANF are that Samantha Elauf, a 17 year-old Muslim girl who easily passed the sincerely held religious belief test, and who wore a head scarf for religious reasons, was encouraged to apply for a job at ANF by a Muslim friend who, unlike Elauf, did not wear head garb. Elauf had no idea that ANF had a policy termed “the look” which required, among other things, that employees not wear headgear of any kind. Interestingly, ANF also had a policy of not asking applicants about their religion during hiring interviews. Elauf was interviewed by a store manager who never mentioned the headgear policy and her interview appeared to go well. However, the store manager later made inquiries from higher ups about Elauf’s headscarf and was told by a regional manager not to hire her. The district court judge for the Northern District of Oklahoma stated the following criteria for Elauf’s prima facie case:
(1) she had a bona fide religious belief that conflicts with an employment requirement; (2) she informed the employer of this belief; and (3) she was not hired for failing to comply with the employment requirement.
The judge then ruled that the burden shifts to the to the defendant to (1) rebut any of three elements of the prima facie case, (2) show that it offered a reasonable accommodation that was not accepted; or (3) prove undue hardship. The judge ultimately ruled for summary judgment in favor of the plaintiff because “Abercrombie has granted numerous exceptions to the Look Policy since 2001, and in particular has recently granted eight or nine head scarf exceptions.” Looked like a slam-dunk at this point.
However, the 10th Circuit reversed because Elauf never formally requested a reasonable accommodation. However … and here it get’s interesting … the Supreme Court reversed the 10th Circuit and, in the process, created what I think is a hybrid disparate treatment scenario specific to religious accommodation cases. Speaking for the majority, Justice Scalia ruled that failure to accommodate cases do not have to be raised via adverse impact rules (as for example in TWA v. Hardison). They can also be raised via disparate treatment rules. Furthermore, if done so, it is not necessary to prove that the employer had actual knowledge of the need for accommodation, but rather, to prove only that “the applicant’s need for an accommodation was a motivating factor in the employer’s decision.” In the present case, there was plenty of evidence that ANF personnel knew that Elauf wore the headscarf for religious reasons, thus prompting the Supreme Court’s reversal.
What I find interesting here, particularly reading Justice Alito’s concurrence, is that it seems to be an oxymoron for religion to play a motivating role in a selection decision unless the employer does not know, for example, that the headscarf is for religious reasons. That said, perhaps ANF should consider rethinking its “don’t ask” policy on religion questions prior to a conditional job offer. That’s obviously a no-no for preemployment inquires in ADA cases. However, it does not violate any Title VII rules with respect to religion. On a more general level, the moral of EEOC v. ANF, at least to me, is to make the inquiry when there are indications of a potential religious issue (e.g., an applicant that shows up wearing a Yamulka). In fact, in view of this ruling, I might incorporate it into the interview hiring protocol.
 The key here is “sincerely held.” A non-observant Jew, for example, could not beg out of work from sundown Friday to sundown Saturday (the Jewish Sabbath) if the record shows that the individual has a habit of playing golf on Saturdays.
 For you stock market home gamers, ANF is the ticker symbol for Abercrombie & Fitch
By Art Gutman, Ph.D., Professor, Florida Institute of Technology