On October 1, 2013, the Tenth Circuit issued a ruling in the religious discrimination case brought by a Muslim teenager who claimed that Abercrombie & Fitch refused to hire her as a salesperson because she wore a hijab—a traditional Muslim headscarf. The hijab conflicted with the retailer’s “Look Policy,” which required salespeople, referred to in the company as “Models,” to maintain a “classic East Coast collegiate style of clothing,” and forbade any head-coverings. The lower court had granted summary judgment to the EEOC, but the Tenth Circuit did an about-face, not only reversing the lower court’s judgment, but granting summary judgment to Abercrombie.

What Happened In This Case?

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 “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.

What Did The Court Hold?

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. Since it was undisputed that Ms. Elauf had not notified Abercrombie of the conflict, the Court held that the EEOC could not make this required showing, and the religious accommodation claim failed as a matter of law.

The Court reasoned that the burden of notice belongs with the applicant or employee, because religion is an inherently personal and individual matter. The applicant or employee is uniquely qualified to know whether a particular practice is religiously motivated, and whether an accommodation is necessary. 

The Court rejected the EEOC’s argument that an 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 work requirement. The Court explained that the applicant or employee should not be able to impose liability on the grounds that the employer should have “guessed, surmised, or figured out from the surrounding circumstances” that the practice was religiously-based and required an accommodation. The Court pointedly noted that the EEOC itself cautions employers against asking about religious practices in the hiring process, or making assumptions about religious practices based on stereotypes.

The Court recognized that some courts have held that an employer’s actual, particularized knowledge of a conflict between an applicant or employee’s religious practice and a workplace policy is sufficient to trigger the employer’s obligation to engage in an interactive process about the need for an accommodation. However, the Court held that in this case, there was no evidence that Abercrombie had such actual knowledge from any source. Instead, the managers involved in the hiring had merely assumed there might be a conflict.  

Does The Decision Create A Conflict Among The Circuits?

The dissent suggested that the majority opinion created a conflict among the circuits as to what notice is sufficient to trigger the employer’s duty to consider accommodations. However, the majority opinion casts doubt as to whether or to what extent such a conflict exists. 

The majority held that the employee or applicant must provide the employer notice. While the majority acknowledged that some courts have held that the employer’s actual, particularized knowledge of a religious conflict, even from a source other than the applicant or employee, is sufficient, it found this line of cases inapplicable given that there was indisputably no such actual notice here. 

The majority noted that the EEOC implied that even “something less than an employer’s particularized, actual knowledge would suffice,” but noted that the Court was aware of no authority in support of this contention, and the EEOC cited none. It remains to be seen whether the EEOC will continue to press—or other courts will adopt—the notion that “something less” than an employer’s actual notice of a conflict will suffice.

What Does The Decision Mean For Employers?

The Court’s decision is good news for employers within the jurisdiction of the Tenth Circuit, which covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus portions of the Yellowstone National Park, where this decision is binding. But the decision provides important lessons for all employers.

Employers should continue to avoid asking job applicants about religious views or practices. Employers should also be wary of speculating about what constitutes a religious practice, or what type of accommodation is appropriate, based on assumptions or stereotyping.

If an applicant or employee does raise the issue of a religious belief that conflicts with a company policy, the employer must engage in the interactive process to determine if there is a reasonable accommodation it could provide. As the Tenth Circuit opinion confirms, the applicant or employee need not use any “magic words” in providing this notice. It’s enough that the applicant or employee, in regular language, provides enough information to make the employer aware of a conflict between religious needs and a work requirement. If the applicant or employee provides this notice, the employer should listen respectfully, document the conversation, and implement the interactive process, documenting the steps along the way, and ideally consulting with counsel about what accommodation(s) must be offered.

But given that uncertainty remains as to what level of notice to the employer is sufficient to trigger the duty to accommodate, employers would be wise to tread very carefully, and consult counsel, if there is any reason to believe that an applicant or employee has a religiously-motivated conflict that may require accommodation. Religious accommodation issues are highly fact-specific, and require careful thought as to all of the circumstances, including the nature of the religious practice, the importance of workplace policy at issue, and the various options for accommodation. Counsel with practical experience in this area can help the employer navigate the issues while minimizing risk.