Dear Dawg:  We don’t allow employees to wear caps, or headgear of any kind while in the building.  Now we have an applicant for a teaching job who is Muslim, and wears a headscarf…all the time.  What to do?  SEEMS LIKE I READ SOMETHING ABOUT THIS RECENTLY.

Dear Seems Like I Read:  Yes, you probably did read something about the Supreme Court’s decision in a case that parallels your situation.  The case involved an applicant with Abercrombie and Fitch.  Have you ever been to one of those stores?  You will instantly feel shabby and out of shape as soon as you walk in. That’s no accident. Company policy includes the “Look Policy.”  Thus the people who work at A&F must look sharp and dress sharp. This includes no caps, hats, berets, scarves over the head or any other such head covering.

So this lady applies for the job wearing her headscarf. The interview went well, and the assistant manager was inclined to offer her a job. But she was worried about the headscarf, and whether or not it would comply with The Look Policy.  She did not ask the applicant why she was wearing the headscarf. She just assumed that it was probably due to a religious belief.

So she asked the manager about it.  No response. She took it up the ladder to the district manager.  The assistant told the district manager that she thought the woman was wearing the headscarf due to her religion.  The district manager told the assistant that wearing the headscarf would violate the Look Policy, and therefore, she should not offer the woman a job.

The woman sued, alleging that A&F discriminated against her on the basis of religion.  A&F’s main argument boiled down to: “but she didn’t tell us!”  The argument was that the plaintiff had to prove intentional discrimination, and how can it be intentional when the employee has not raised the issue.  In other words, A&F argued that the woman should have said something like this: “By the way, I’m a Muslim.  Will you please waive your Look Policy for me?”

The Supreme Court ruled in favor of the woman. The seven-member majority held that the key was not what the employer knew, but rather the motive of the employer. Here’s the key quote:

An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that an accommodation would be needed.

In this case A&F did not know that the woman would request an accommodation. But it had an “unsubstantiated suspicion” that this was the case. Critically, it was the refusal to even consider accommodating the employee’s religion that was the motive.  In the Court’s words, the district manager was seeking to “avoid accommodation.”

A&F also argued that the “Look Policy” was completely neutral. It did not single out religious headgear.  No head covering of any kind would be permitted.  But the Court made short work of that:

But 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.”

Keep in mind that no one ever asked the applicant if she is wearing the scarf because of her religious beliefs.   It’s understandable that the assistant would not want to inquire about the woman’s religion.  That would be an improper question.

But the assistant could have explained the Look Policy, and inquired about whether or not the applicant would be able to comply with it.  If the applicant balked, due to her religious beliefs, then the two of them could have engaged in a conversation about possible accommodations.

The case is EEOC v. Abercrombie & Fitch, decided by the Supreme Court on June 1, 2015.  Justice Scalia wrote the majority opinion, which garnered the support of conservatives and liberals on the Court alike.  But Justice Alito only “concurred” in the judgment, and Justice Thomas mostly dissented.  So score this one 7-2.