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Motivation is not the same as knowledge

Employment discrimination can come in many guises and wears many veils. These policies are often cloaked in the language of neutrality, seemingly applying to all persons in a neutral fashion, but they often become an effective tool to exclude some by discrimination.

The U.S. Supreme Court ruled this week in favor of a woman who wore a head scarf because of her religious beliefs, finding a suspicion or hunch by an employer is sufficient to trigger the illegal "motivation" element of Title VII.

The case involved disparate treatment under Title VII of the Civil Rights Act of 1964. That section of Title VII prohibits an employer from failing to hire an applicant because of the individual's religion.

Here, the retail store Abercrombie and Fitch refused to hire a woman who wore a head scarf to a job interview. The store's "Look Policy" prohibited "caps," which were not defined by the policy. When the interviewer checked with her superior, he informed her that any headwear would violate that policy, religious or not, and the applicant was not hired.

The Equal Employment Opportunity Commission (EEOC) sued on her behalf, and won at the district court, but lost in the Tenth Circuit. Abercrombie argued that because there was no actual knowledge of the women's need for accommodation due to her religious beliefs by the store, there was no disparate treatment. They simply did not allow headgear.

The Supreme Court found even though Abercrombie did not have actual knowledge of her religious beliefs, they suspected she wore the head scarf due to her religion, and that that became the motivating factor for not hiring her.

And that motivating factor, based on a "suspicion or hunch" of religious belief, was enough to generate liability under Title VII.

Reuters.com, "Supreme Court backs Muslim woman denied job over head scarf," LAWRENCE HURLEY, June 1, 2015

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