Civil Rights Reporter 

When Samantha Elauf, who is Muslim, interviewed for a position with Abercrombie & Fitch, she wore a hijab (headscarf). During her interview, Ms. Elauf never mentioned she was Muslim. Moreover, she did not talk about her hijab, let alone explain that she wore it for religious reasons. Her interviewer didn’t know Ms. Elauf’s religion. She simply “assumed she was Muslim” and “figured” that she was wearing the hijab for religious reasons. The interviewer told the district manager that she “believed Elauf wore her headscarf because of her faith.” The district manager responded that Ms. Elauf could not be hired because of Abercrombie’s policy against headwear, “religious or otherwise.”
 
The Tenth Circuit Court of Appeals found that suspicion and assumption are not the same as knowledge. It was not enough to say that Abercrombie knew that Ms. Elauf wore a hijab due to her religion. Rather than apply a “knew or should have known” standard, the Tenth Circuit applied a “knew beyond any doubt and/or was specifically told by the employee” standard.
 
The Supreme Court reversed. The Court stated that there is no “knowledge” requirement in the statute, but rather only a “motive” requirement. In other words, because Abercrombie’s motivation in not hiring Ms. Elauf was because of her headscarf, and she wore her headscarf due to her religion, Abercrombie’s motive in not hiring Ms. Elauf was due to her religion. Thus, Abercrombie violated the law.
 
The Court specifically rejected the Tenth Circuit’s analysis, finding that requiring “actual knowledge” that the practice was related to religion by the employer added words to the statute to reach a desired result. The Court noted that “it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice ***.” However, the Court held that it did not need to reach that question because here Abercrombie’s staff knew (or at least suspected) that Ms. Elauf wore her scarf for religious reasons. It, therefore, could not claim ignorance that her religious practice was at issue.
 
When it comes to religion, an employer can’t ignore its own suspicion. It cannot escape liability simply because the applicant or employee fails to mention his or her religion or a need for an accommodation. Why? Because it knew. An employer can violate the law just as if the applicant/employee specifically mentions his or her religion.
 
So, when you know, you know.
 
And now you know.