Question:

I recently heard about a case involving dress codes for employees. My business does not allow employees to wear hats, caps, or head coverings indoors. Does this case have any impact on this dress code?

Answer:

The case you are referring to, EEOC v. Abercrombie & Fitch Stores, Inc., held that an employer violated Title VII of the Civil Rights Act of 1964 (Title VII) when it refused to hire an applicant who wore a religious headscarf. An assistant manager at an Abercrombie & Fitch store interviewed an applicant who she assumed was wearing a headscarf for religious purposes. Following the interview, the assistant manager contacted a district manager to ask whether the applicant’s headscarf would violate the company’s dress code policy which forbids the wearing of “caps.” Abercrombie & Fitch imposes a Look Policy that governs its employees’ dress. The Look Policy prohib­its “caps” as too in­formal for Abercrombie’s desired image. The assistant manager told the district manager that she believed the applicant’s headscarf was worn for religious purposes. In response, the district manager told the assistant manager that the company’s dress code policy prohibited the wearing of all headwear, religious or otherwise, and directed the assistant manager not to hire the applicant.
Title VII prohibits a prospective employer from refusing to hire an applicant because of her religion, or in order to avoid accommodating a religious practice that could be accommodated without undue hardship. The question before the Supreme Court in the Abercrombie case was “whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.” The employer argued it did not violate Title VII because the employer did not have actual knowledge that the applicant needed an accommodation based on her religion, and therefore the failure to hire the applicant was not motivated by her religion.
The U.S. Supreme Court found that that unlike the Americans with Disabilities Act of 1990 (ADA) which defines discrimination as an employer’s failure to make “reasonable accommodations for the known physical or mental limitations of an applicant,” Title VII contains no such limitation. An employer can be liable for violation of Title VII even if it does not have actual knowledge of the applicant’s need for an accommodation. According to the Court, in order to prevail under Title VII, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision” not to hire the applicant, and therefore an employer may not make an applicant’s religious practice, confirmed or suspected, a factor in employment decisions.
It is very important for employers, hiring managers, and interviewers to be informed of federal and California requirements regarding the employer’s obligation to provide reasonable accommodations for religious dress and grooming practices. This case also highlights the importance of ensuring that your dress code policy states that the company will reasonably accommodate religious dress and grooming practices since such accommodations typically do not rise to the level of an undue hardship under California law.