On February 25, 2015, the U.S. Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc., a closely-watched religious discrimination case that we’ve blogged about before.

The EEOC’s petition for certiorari framed the legal question this way: “Whether an employer can be liable under Title VII for refusing to hire an applicant or for discharging an employee based on a ‘religious observance and practice’ only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”

In practical terms, the Court’s decision is expected to focus on what level of knowledge an employer must have that an employee or applicant’s religious practice may conflict with a job requirement, and from what source, before it has a duty to consider accommodation. Is it the employee’s burden to alert the employer, as the Tenth Circuit held below? Or is actual notice to the employer from any source (even if it is not the employee) sufficient? Or, as the EEOC contends, is even something less than the employer’s actual notice sufficient to trigger the duty to consider accommodations?

Takeaways for Employers and Employees

What did we learn from the oral argument? Three key takeaways: First, many of the justices seemed skeptical of the company’s position that only actual knowledge from the applicant of the religious belief was adequate to put the employer of notice of the duty to accommodate. Second, the justices seemed keen to explore precisely what level of notice, short of actual knowledge from the applicant, would be adequate. Third, the Court wrestled with the practicalities, namely how can the employer raise the issue with the applicant without engaging in the very stereotyping that the law prohibits?

10-Second Recap of the Facts

Seventeen year-old Samantha Elauf, who identifies herself as Muslim, and claimed to have worn a headscarf for years for religious reasons, applied for a sales floor position in an Abercrombie store in Tulsa, Oklahoma. At the job interview, to which she wore the headscarf, Ms. Elauf said nothing to Abercrombie about the fact that she was Muslim. She did not bring up the subject of the headscarf, or say that she wore it for religious reasons, that she felt a religious obligation to do so, or that she would need an accommodation from the retailer’s “Look Policy.” However, her interviewer testified that she assumed that Ms. Elauf was Muslim, and wore the head-covering for religious reasons. There was evidence that the headscarf influenced Ms. Elauf’s interview scores, and in turn, the company’s decision not to hire her.

The Courts Below

The district court granted summary judgment for the EEOC. The Tenth Circuit not only reversed that judgment, but granted summary judgment to Abercrombie. The Tenth Circuit held that the burden is squarely on the applicant or employee to advise the employer that he or she has a religious practice that conflicts with a job requirement, because religion is an inherently individual matter, and he or she is uniquely qualified to know those personal religious beliefs and whether an accommodation is necessary. The court rejected the EEOC’s argument that the employer has a duty to attempt reasonable accommodation when the employer has notice from any source that the applicant or employee has a religious belief that conflicts with a job requirement.

Oral Argument

Skepticism for Abercrombie’s Position

Abercrombie’s lawyer faced a tough crowd. Many of the justices appeared skeptical of Abercrombie’s position that only actual knowledge from the applicant of the religious belief was adequate to put the employer of notice of the duty to accommodate.

For example, Justice Breyer characterized the Tenth Circuit’s position this way: “Employer, unless you receive direct, explicit notice that what she wants to wear is based on religion and she wants an accommodation, unless you receive direct, explicit notice from her, you’re home free to do what you want.”

Justice Ginsburg suggested that the employer had superior knowledge of its work rules, asking, “How could [the applicant] ask for something when she didn’t know the employer had such a rule?”

And Justice Alito challenged the company’s counsel as to whether Abercrombie was “willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.”

Only Justice Scalia appeared to endorse the company’s position fully. Justice Scalia said that the Tenth Circuit’s rule “avoids all problems” by making clear that “if you want to sue me for denying you a job for a religious reason, the burden is on you to say, I’m wearing the headscarf for a religious reason.”

Exploration of What Level of Notice Suffices

Having seemed to discount the possibility that actual notice from the applicant was required, any of the justices’ questions explored precisely what level of notice would be adequate.

Even the Court’s more liberal justices pushed the EEOC to define what level of notice, short of actual notice, was adequate. Justice Kagan asked the EEOC’s counsel whether, if the rule were that the employer is on notice with “less than certainty, how much less than certainty is it?”

Justice Breyer appeared to endorse a rule that “if the employer believes, thinks, this woman is religious and needs an accommodation and he’s right,” that the employer would be obligated to explore an accommodation. Justice Breyer challenged Abercrombie’s position that such a rule was “unadministrable,” pointing out that many areas of the law turn on proof of a “belief.”

However, at one point, Justice Breyer said that he was “sort of interested – hardly a ringing endorsement – in Abercrombie’s counsel’s suggestion during argument that the employer’s knowledge would have to be, if not from the applicant, at least “traceable” to the applicant.

Practical Nuts & Bolts

The justices’ questions revealed a desire to enunciate a rule that would be practical to implement for both employers and applicants.

Abercrombie’s concern that the EEOC’s position would promote stereotyping seemed to resonate with at least some of the justices. Chief Justice Roberts challenged the EEOC that its solution “may promote stereotypes to a far greater degree than what you’re objecting to.”

Indeed, Abercrombie’s counsel argued that an employer faced with the EEOC’s rule could only protect itself by “training their managers to stereotype about possible religious beliefs because a judge or jury might later find that . . . an employer correctly understood, or must have correctly understood” that the applicant had a religious belief incompatible with a workplace rule.

The justices even tried out various scripts that an employer might use to broach the subject with an applicant.   Justice Sotomayor initially suggested, “So why can’t the employer just simply say, we have a Look Policy that doesn’t permit beards. Can you comply with that policy?” After some debate about whether a religious employee can comply with the policy, even if it makes the employee religiously uncomfortable, Justice Alito suggested a revised formulation: “Well, couldn’t the employer say, we have a policy [of] no beards . . . do you have any problem with that?” At least Justices Sotomayor and Ginsburg expressed support for such a rule during the course of the argument.

The justices make it sound easy, but the pitfalls for employers are many. The rule leaves the interviewer having to draw an on-the-spot inference from the way the employee looks — or possibly other markers, such as a last name — about the employee’s potential religion, and which workplace rules might cause a conflict. There is also the risk that an applicant will misinterpret a reference to religious attire or grooming as evidence of a discriminatory animus against the applicant’s religion.

Justice Breyer distilled the essence of Abercrombie’s argument this way: “There are millions of people who are practicing one religion or another where you get a clue of that from their name or maybe their dress or whatever it is. And whenever we have such a person applying, if she doesn’t say anything . . . and we don’t hire them . . . we’re going to get sued. . . [W]ithout that simple rule, tell us, we’re going to be in a real administrative rat mess getting sued left, right and center.” Abercrombie’s counsel agreed that this just about summed it up.

Conclusion

It is notoriously hard to infer from Supreme Court oral argument which way the Court will come down in its decision, but there was little in the argument to provide comfort to employers that the Court will affirm the Tenth Circuit’s decision. Watch this blog for coverage of the Court’s decision.