Why it matters: Can an employer be liable under Title VII for discrimination where an applicant or employee did not explicitly request an accommodation for a religious practice? The U.S. Supreme Court has agreed to answer this question in a high-profile dispute involving an applicant who wore a hijab to a job interview at Abercrombie & Fitch. The plaintiff sued the national retailer alleging the failure to accommodate her religious beliefs violated her Title VII rights. A federal district court granted summary judgment for the plaintiff, but the Tenth U.S. Circuit Court of Appeals reversed. Citing similar decisions from the Third, Fourth, Seventh, and Eighth Circuits, the majority opinion made clear that the burden rests on an applicant or an employee to initially inform an employer of the religious nature of his or her conflicting practice and the need for an accommodation. A dissenting member of the panel noted contrary rulings from the Ninth and Eleventh Circuits. With a Circuit split in place – and religious accommodation a major issue in the workplace – the justices accepted the case. Oral argument and a decision are expected later this term.

Detailed Discussion

In 2008, Samantha Elauf applied for a job at Abercrombie Kids in Tulsa, Oklahoma. During her two interviews, Elauf wore a hijab, or headscarf. But at no point during the process did she inform the employer that she was a practicing Muslim or ask whether the headwear would be an issue.

Abercrombie declined to hire Elauf because of the hijab, which conflicted with the company’s “Look Policy,” the retailer’s dress code for employees. The Policy seeks to promote and showcase the retailer’s “classic East Coast collegiate style” and brand. On behalf of Elauf, the Equal Employment Opportunity Commission (EEOC) brought suit against the retailer, alleging religious discrimination in violation of Title VII.

A federal district court granted summary judgment in Elauf’s favor, and after a damages-only jury trial she was awarded $20,000.

But in a 95-page decision, the Tenth Circuit reversed, holding that the plaintiff failed to set forth a prima facie case of discrimination because Elauf had not requested a religious accommodation.

“Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obligated to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie’s clothing policy,” the divided panel wrote.

The majority recognized that employers face a Catch-22 under Title VII. The EEOC “discourages employers from making inquiries in the first instance regarding the religious beliefs or practices of applicants,” while on the other hand, without knowledge of an employee’s need for a religious accommodation, it is hard for employers to provide one. “[H]ow is an employer to know that applicants or employees are engaged in a practice for religious reasons, unless they inform the employer?” the court asked.

Religion is a uniquely personal and individual matter, the panel said, and even generalized knowledge may not be sufficient to guide employers where not all Muslim women wear a hijab and not all women wear a headscarf because of religious beliefs.

“Thus, it is only after an employer is put on notice of the need for a religious accommodation that the EEOC’s policy materials encourage it to actively engage in a dialogue with applicants or employees concerning their conflicting religious practice and possible accommodations that the employer might provide for it,” the court wrote.

Calling its interpretation “the most natural reading” of the language of Title VII, the panel also found support in the EEOC’s own regulations and policy documents, such as its compliance manual and best practices guidance, as well as analogous requirements under the Americans with Disabilities Act.

The EEOC petitioned the high court for review, arguing that the Tenth Circuit created an “additional requirement that an employer’s understanding that a practice reflects religious beliefs must come from explicit statements of the applicant herself.” Such a narrow interpretation of Title VII “threatens broad adverse consequences, particularly in situations involving applications for employment, where applicants may never learn that their religious practices conflict with job requirements and therefore require accommodation,” the agency wrote in its petition.

In its brief in opposition to high court review, Abercrombie told the justices that job applicants should not be allowed “to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.”

To read the Tenth Circuit’s opinion in EEOC v. Abercrombie & Fitch, click here.

To read the EEOC’s cert petition, click here.

To read Abercrombie’s brief in opposition, click here.