In Equal Employment Opportunity Commission v. Abercombie & Fitch Stores, Inc. (2015), seven justices of the U.S. Supreme Court found that Abercrombie & Fitch (A&F) violated Title VII of the Civil Rights Act of 1964 by refusing to hire a Muslim woman who wore a headscarf for religious reasons.  A&F attempted to justify its decision on the ground that a headscarf was contrary to its “Look Policy” that prohibited “caps” as “too informal” for A&F’s image.  The Supreme Court’s decision may prove important for religious land use disputes for several reasons.  First, the Supreme Court appears to be continuing a trend in favor of robust religious protection, following its most recent decisions in Burwell v. Hobby Lobby Stores (2014) and Holt v. Hobbs (2015).  Second, in Roman Catholic Bishop of Springfield v. City of Springfield (1st Cir. 2013), the First Circuit likened RLUIPA’s substantial burden provision in a land use case to the disparate impact theory of employment discrimination: “Taken together, these factors reveal that the substantial burden analysis often backstops the explicit prohibition of religious discrimination in RLUIPA’s subsection (b) much in the same way as the disparate-impact theory of employment discrimination backstops the prohibition of intentional discrimination.”  Third, the Supreme Court has a history of deciding significant employment discrimination cases, albeit under the Free Exercise Clause, that affects religious land use disputes to this day.  Consider Employment Division v. Smith (1990) in which the Supreme Court ruled that denying unemployment benefits to Native Americans fired for smoking peyote as a religious ritual did not violate the Free Exercise Clause because state law banning the intentional possession of a controlled substance was neutral and generally applicable.  In response to Smith, Congress enacted the Religious Freedom Restoration Act, which was referred to in Hobby Lobby as RLUIPA’s “sister statute.”

In the Abercrombie & Fitch case, the Supreme Court concluded that the Tenth Circuit had erred by granting summary judgment in favor of A&F after finding that an employer ordinarily cannot be liable under Title VII for failing to accommodate a religious practice until the employee provides the employer with actual knowledge of the need for an accommodation.

The Supreme Court, in an opinion authored by Justice Scalia, disagreed and found that an employee must only show that his need for accommodation was a motivating factor in the employer’s decision:

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.  For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays.  If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

The Supreme Court also rejected A&F’s argument that it should prevail because it had a neutral headwear policy: “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.”

Justice Alito concurred in the judgment, but stated that a different test for liability should apply – one in which A&F would only be liable if it had knowledge that the prospective employee wore the headscarf for religious reasons.  Justice Alito, however, noted that there was sufficient evidence that A&F had such knowledge.  Justice Thomas concurred in part and dissented in part, arguing that A&F’s actions did not constitute disparate treatment, but was instead an example of maintaining a neutral headwear policy.