The U.S. Supreme Court recently agreed to hear an appeal challenging the Tenth Circuit’s reversal of summary judgment for the Equal Employment Opportunity Commission (“EEOC”) in the case of a 17-year old Muslim who Abercrombie & Fitch allegedly refused to hire because her hijab violated the company’s “Look Policy.”
The District Court in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., entered summary judgment for the EEOC in 2011, finding that the retail clothing chain had sufficient notice that a conflict existed between its “Look Policy” that prohibits headgear and the exercise of religious rights of a Muslim applicant who wore a hijab to her interview. However, in 2013, the Tenth Circuit overturned that decision, finding that the applicant in question, Samantha Elauf, despite wearing a hijab to her interview, did not notify her employer of her need for a religious accommodation. The Supreme Court granted certification and will now review this decision.
In their petition, the EEOC argued that Title VII does not require an employee or applicant to explicitly state that a practice conflicts with his or her religious beliefs. If the Supreme Court agrees with the EEOC, it will provide significant clarification for employers who question when they may be liable for discrimination even if applicants or employees do not directly request accommodations for religious practices.
While the Tenth Circuit’s position on notice of the need for religious accommodation arguably takes a rigid view that conflicts with common sense where an applicant is wearing a hijab, more subtle situations will often put an employer in a difficult situation. While certain manifestations of religious observation may be visible and obvious, interviewers and managers could be labeled as discriminatory if they overreach and stereotype an employee or applicant by asking questions about their religious practices in less clear-cut circumstances. For that reason, it is generally better to wait for an employee to request an accommodation. Employers should watch this case closely, and in the meantime, use a common sense approach to offering religious accommodations to both applicants and employees.