My schedule has been topsy-turvy lately. That is why you are seeing posting of the blog on different days than typical. I am also going out of town over the weekend and be back early in the week, and so my next blog will also be later in the week. The weekend after next, I expect to get back to my early in the week blogging.

In Equal Employment Opportunity Commission v. Abercrombie and Fitch Stores, Inc., the Supreme Court held that it wasn’t necessary for an applicant to have to inform the employer of his need for religious accommodations for the employer to be held liable for violating title VII of the Civil Rights Act of 1964. All the commentaries in my blog roll and then some have talked about this opinion. What I have not seen is this case talked about in terms of the impact that it has on the ADA. So here goes… As is typical for my blog entries, I have divided the blog entry into categories: facts; reasoning (including how it might apply to the ADA on the reasoning as a separate paragraph underneath the particular reason); and conclusions. The blog entry is short and kind of flows. Therefore, you probably want to read the whole thing, but nevertheless the categories remain.

I
Facts

Plaintiff, a practicing Muslim, wears a headscarf. She applied for a position at the store and was given a rating that qualified her to be hired. However, the person that gave the rating was concerned that her headscarf would conflict with the store’s look policy, since modified. The person doing the rating sought guidance from the store manager to clarify whether the headscarf violated the company’s look policy. When she received a no answer she then took it to the district manager who informed her that he believed the applicant wore the headscarf because of her faith and that the headscarf would indeed violate the look policy. When she was denied the job she brought it to the EEOC who then brought suit.

II
Reasoning

1. Disparate treatment and disparate impact are the only causes of action under title VII.

ADA take: The ADA doesn’t work this way. Yes, you can have disparate impact and you could also have disparate treatment. However, the ADA is a world unto itself. For example, reasonable accommodations is something else entirely. Also, as discussed previously, the ADA is not a place where you often see comparables, which is often the case in disparate treatment claims, and comparables is not necessary for liability under the ADA as discussed here.

2. The applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.

ADA take: Footnote 2 of the opinion says that the employer has the burden of establishing an undue hardship defense because of the phrasing of the statute. That phrasing is similar to the phrasing of the ADA with respect to undue hardship/undue burden. Thus, the long line of cases talking about undue hardship/undue burden being an affirmative defense is probably correct.

3. The ADA requires that reasonable accommodations be made to the known physical or mental limitations of an applicant and title VII does not have any such limitation.

ADA take: True, the ADA requires that the employer has to be aware of the physical or mental limitations of an applicant prior to making a reasonable accommodation. But, the question remains what does it mean for the employer to know. For example, many a case has said that magic words are not necessary to request a reasonable accommodation.

4. 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 the decision, the employer violates title VII. The disparate treatment provision of title VII of the Civil Rights Act prohibits action taken with the motive of avoiding the need for accommodations…

ADA take: Title I of the ADA is tied into title VII of the Civil Rights Act with respect to remedies. This particular statement is a strong indicator that motivating factor is in play with respect to title I, a point which I have made previously.

3. Title VII does not demand mere neutrality with regards to religious 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. Further, title VII requires otherwise neutral policy to give way to the need for an accommodation.

ADA take: The same exact statement easily applies to the ADA. In fact, reasonable accommodations under the ADA goes much further than reasonable accommodations with respect to religion. Also, with respect to title I of the ADA, the operative term is, “on the basis of” and not, “because.”

III
Conclusions

1. For those in the ADA field, such as myself, I would count this decision as a plus for persons with disabilities as it reaffirms many of the basic premises of the ADA.

2. It seems very clear now, though one never knows, that mixed motive is definitely in play with respect to title I of the ADA. Further, this case even allows for motivating factor where the statute uses the term, “because.”

3. The ADA does impose a knowledge requirement with respect to reasonable accommodations, but just what is that knowledge requirement is not addressed by this case, which didn’t have anything to do with the ADA. As mentioned above, there is a long line of cases that says actual knowledge is not required. It is my view that you are better off thinking of the knowledge requirement for reasonable accommodations vis-à-vis the ADA in terms of an objective standard of knew or should have known.

4 Responses to EEOC v. Abercrombie and Fitch stores Inc.: How does it Apply to the ADA?

NEW Q ON ADA –ARE RESTAURANTS THAT HAVE A “NO TAKE-OUT” POLICY REQUIRED TO ALLOW PPEOPLE DISABLED BY A STROKE TO LET THEIR CAREGIVERS
PICK UP FOOD FOR THEIR PATIENT??????/ REAL EXAMPLE–CHICAGO GRILL IN PHX WON’T ALLOW COUPONS FROM LIVING SOCIAL TO BE USED FOR TAKE-OUT!!!!!!!!!!!!!!!!!!!!!!

There are two separate questions here. First, if the person with a disability able to get into the restaurant at all on his or her own? Second, does the restaurant accept living social coupons
from non-disabled patrons?

THE PATIENT EATS ALL HIS FOOD AT HOME; IT IS VERY DIFFICULT FOR HIM TO SIT IN A RESTAURANT.. YES RTHE GRILL ACCEPTS LIVING SOCIAL COUPONS FOR ALL DINE-IN CUSTOMERS

What you would have here is a facially neutral policy that impacts persons with disabilities in an adverse way. The main blog entry of mine above may well have something to say on this matter. The question would be whether changing the policy to allow for takeout dining only in some circumstances would fundamentally alter the nature of the business. This would be a complicated case.

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