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Justices Try to Define Religious Accomondation Standard

    Justices Try to Define Religious Accommodation Standard

    By Joanne Deschenaux

    2/26/2015

    Did retailer Abercrombie & Fitch discriminate against a woman who was denied a job because her Muslim headscarf, known as a hijab, conflicted with the company’s dress code? That was the question before the U.S. Supreme Court on Feb. 25, 2015, in a case that raises important questions about an employer’s obligations in the religious accommodation context (Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, No. 14-86).

    Job applicants should be required to provide employers with direct, explicit notice about their religious practices or beliefs before an employer's duty to accommodate is triggered under Title VII of the 1964 Civil Rights Act, argued attorney Shay Dvoretzky, representing the retailer.

    Dvoretzky, of Jones Day in Washington, D.C., asked the justices to uphold the ruling of the 10th U.S. Circuit Court that Abercrombie isn't liable for failing to accommodate Samantha Elauf, a Muslim woman who wore a hijab to a job interview, because she never indicated that she required an accommodation. Abercrombie had a dress code for store employees that prohibited them from wearing black hats or caps and said it didn't hire Elauf because she didn't comply with it.

    Appearing for the Equal Employment Opportunity Commission (EEOC), which had sued on Elauf’s behalf, Deputy Solicitor General Ian Gershengorn argued that the 10th Circuit's standard places too much of the burden on the employee and that Title VII's religious accommodation duty should be triggered if an employer has sufficient understanding that an applicant may need an accommodation.

    Stores Had ‘Look Policy’

    Abercrombie & Fitch operates stores across the United States under a variety of brand names. Employees in Abercrombie’s stores must comply with a “look policy” that requires them to dress in a manner that is consistent with the kinds of clothing that Abercrombie sells. Notably, the policy prohibits employees from wearing black clothing and “caps,” although it does not define the meaning of “cap.”

    Elauf applied for a position at the Abercrombie Kids store in Tulsa, Okla. During the interview with assistant manager Heather Cooke, Elauf wore an Abercrombie-like T-shirt and jeans as well as a black hijab. Cooke never mentioned the look policy but informed Elauf that employees were required to wear clothing similar to that sold by Abercrombie.

    Elauf never told Cooke that she was Muslim, that she wore the headscarf for religious reasons and that she would need an accommodation to address the conflict with the company’s clothing policy. Cooke didn’t know if the headscarf would be a problem and if the accessory could be black in color, so she consulted with her district manager. When he stated that Elauf’s headscarf was inconsistent with the look policy, Cooke did not extend a job offer to Elauf.

    The EEOC brought suit under Title VII. Abercrombie argued that the applicant never informed anyone of a conflict between the look policy and her religious practices. The district court concluded that the clothing retailer had “notice” that she wore a headscarf because of her religious belief and refused to hire her because the garment conflicted with its policy.

    The 10th Circuit, however, disagreed with that ruling. The court insisted, “as a logical matter,” that ordinarily the applicant or employee must initially provide the employer with “explicit notice” of the conflicting religious practice and the need for an accommodation for it in order to have an actionable claim for denial of such an accommodation. The EEOC could not establish notice, the 10th Circuit observed, because Elauf never informed Abercrombie before its hiring decision that her practice of wearing a hijab was based on her religious beliefs and that she needed an accommodation because of a conflict with the company’s clothing policy.

    Since Cooke did not ask Elauf if she was Muslim, Cooke’s knowledge that the applicant wore a hijab would be “far from sufficient information” to provide her with the requisite notice that would trigger an employer’s duty to accommodate, the court said.

    The 10th Circuit further explained that any awareness that the district manager had of Elauf’s religious beliefs and required practices would have been derived solely from Cooke’s assumptions. The court warned that an applicant should not be able to impose liability on an employer on the ground that it should have “guessed, surmised or figured out from the surrounding circumstances” that the practice was based on her religion and that she needed an accommodation for it.

    Abercrombie & Fitch changed its “look policy” in 2010 to allow its workers to wear hijabs. In 2013, it settled two other EEOC discrimination lawsuits over the same issue.

    Justices Try to Identify Standard

    “The court was extremely active in its questioning,” Bill Nolan, an attorney at Barnes & Thornburg in Columbus, Ohio, told SHRM Online.

    “All of the justices seem to be trying to identify what is a workable test to fulfill Title VII’s prohibition on religious discrimination and requirement of a reasonable religious accommodation for religious beliefs,” he said.

    Specifically, when does the employer’s obligation to have a dialogue about accommodation trigger, and between the employer and the employee/applicant, who bears the burden of awareness of a religious issue?

    Does the employee/applicant, as the 10th Circuit said, need to expressly inform the employer of the need for accommodation?  Or does the employer sufficiently “know” when the employee/applicant’s dress strongly suggests that he or she is wearing clothes that do not conform with company policy for a religious reason?  If it’s the latter, how do you draw that line?

    Although Justice Antonin Scalia noted that the way to avoid “hard cases” was to adopt the 10th Circuit's rule imposing the duty on the applicant or employee to ask for a religious accommodation, a number of the other justices appeared more skeptical.

    For example, Justice Samuel Alito posed a hypothetical in which a Sikh man wearing a turban, a Hasidic man wearing a hat, a Muslim woman wearing a hijab and a Catholic nun in a habit all apply for a position. He asked Dvoretzky if those applicants would all have to explicitly tell the employer that they dressed that way for religious reasons.

    Dvoretzky acknowledged that there are cases in which it would be more obvious that a “particular garb is worn for religious reasons,” but that there are also “far more ambiguous” situations in which a “particular outward symbol” may or may not be religious.

    Employers Cautioned

    However the court rules in this case, “Employers must remember that the provisions in Title VII relating to religion require accommodation, not just a prohibition against discrimination,” Kevin Hyde, an attorney at Foley & Lardner in Jacksonville, Fla., told SHRM Online.

    “Whichever standard is adopted, employers must accommodate an employee’s beliefs and practices. The focus should be on the fact of accommodation rather than whether an accommodation is required. Be prepared to accommodate,” he said.

    Joanne Deschenaux, J.D., is SHRM’s senior legal editor.