Next term, the U.S. Supreme Court will take up the case of a Muslim teenager, Samantha Elauf, who was denied a job a retailer Abercrombie & Fitch Co. because she wore a headscarf. Abercrombie has faced a number of lawsuits in recent years stemming from the clash between the retailer’s “Look Policy” and the religious practices of employees or applicants. Abercrombie’s branding and advertising is done largely in person through its salespeople in physical stores—the salespeople are expected to model the Abercrombie style to customers. According to the lawsuit, the company calls its salespeople “Models” and requires them to adhere to the company’s Look Policy, which regulates employees’ clothes, jewelry, make up and hair; employees are prohibited from, among other things, wearing hats or black clothes, and must wear clothing styles similar to the clothing being sold in the store. 

Title VII of the Civil Rights Act of 1964 requires employers to reasonably accommodate sincerely-held religious beliefs of its employees, unless doing so would create an undue hardship on the employer. An employee asserting a Title VII religious discrimination claim must establish (1) a sincere religious belief that conflicted with an employment requirement, (2) the employer was informed of the employee’s religious belief, and (3) the employee was fired for failing to comply with the conflicting employment requirement. If the employee is able to establish these three elements, the employer then must show that it was unable to reasonably accommodate the employee’s religious needs without undue hardship. The issue before the Supreme Court is whether a job applicant or employee must provide an employer with direct, explicit notice that they require a religious accommodation (the second prong) in order to gain the protections of Title VII, or whether some lesser notice is sufficient to trigger an employer’s duty to engage in a dialogue with the applicant or employee about the possible need for a religious accommodation. 

According to the lawsuit, Elauf had a friend who worked at Abercrombie (incidentally, her friend was Muslim but did not wear a headscarf). Before applying for a job at Abercrombie, Elauf and her friend discussed whether Elauf’s headscarf would be an issue; her friend talked to a manager, who said he didn’t think it should be an issue as another employee he had worked with had worn a yarmulke, but that employees could not wear black. Elauf came to her interview wearing a black headscarf. Neither Elauf’s religion nor the headscarf were discussed during the interview, although the interviewer assumed Elauf was Muslim, that was why she wore the headscarf, and assumed she would continue to wear the headscarf if she were hired. Pursuant to Abercrombie policy, interviewers are instructed not to assume facts about applicants or ask about an applicant’s religion during an interview, and if an applicant requests a deviation from the Look Policy, the interviewer should contact HR or a supervisor, who can grant accommodations if doing so would not harm the brand. Elauf’s interviewer consulted a supervisor, who told her that hats were not permitted and instructed her to change Elauf’s appearance interview score, which resulted in Elauf not getting the job. The EEOC then sued Abercrombie on Elauf’s behalf in federal court in Oklahoma.

The District Court granted summary judgment in favor of the EEOC, finding that Abercrombie had actual notice of Elauf’s religious practice of wearing a headscarf because of the interviewer’s assumptions about Elauf’s religion and reason for wearing the headscarf. In reversing the District Court and granting summary judgment in favor of Abercrombie, the Tenth Circuit in a 2-1 decision held that in order to meet the notice requirement of their prima facie case, plaintiffs ordinarily must establish that they initially informed the employer that they engage in a particular practice for religious reasons and that they need an accommodation for that practice due to a conflict between the practice and the employer’s work rules. In so holding, the court noted that putting the burden on the employee prevents an employer from having to guess, surmise, or figure out from the surrounding circumstances whether a particular practice is based upon an employee’s religion and that the employee needs an accommodation because the practice is an inflexible one. 

As the Tenth Circuit [pdf] explained, “[e]ven if an employer was generally aware of the beliefs and observances that are traditionally associated with a particular religious group, and also knew that the applicant or employee displayed symbols associated with that group—or even that the applicant or employee specifically claimed to be a member of that group—ordinarily, the employer would still not know whether the conflicting practice in question actually stemmed from religious beliefs unless the particular applicant or employee informed the employer, because under Title VII…religion is a uniquely personal and individual matter.” Additionally, “even if an employer has particularized actual knowledge that the practice of a particular applicant stems from his or her religious beliefs, that still does not trigger the employer’s duty to offer a reasonable accommodation because the applicant or employee may not actually need an accommodation—they may not consider the practice to be inflexible, and may not feel obliged by religion to adhere to the practice, and thus there would be no need for the employer to provide a reasonable accommodation. Thus, “whether a particular practice is religiously required is ultimately a question that only a particular individual can answer—even if the same practice is customarily required in the religion that the person claims to follow.” The Tenth Circuit went on to note that requiring the applicant or employee to initiate the communication about the possible need for a religious accommodation comports with the EEOC’s guidance, which affirmatively discourages employers from making religious inquiries to applicants and states that employers should train employees not to engage in stereotyping based on religious dress and grooming practices.

As the dissent pointed out, however, an employee cannot notify the employer of the need for accommodation if the employee does not know there is a conflict between her religious practice and the employer’s practices. In the dissent’s view, where the employer has knowledge of a credible potential conflict between its policies and the applicant’s religious practices, the employer has a duty to inquire into this potential conflict. In this case, the dissent said, “Abercrombie only had a duty to disclose to Elauf that its Look Policy prohibited Elauf from wearing any headwear while working in one of Abercrombie’s stores, when it had notice of facts that suggested to it the possibility of such a conflict. This inquiry would have been sufficient to initiate any needed dialogue between the job applicant, Elauf, and the employer, Abercrombie, as to whether Elauf had religious beliefs that conflicted with Abercrombie’s dress code, beliefs which perhaps would be addressed by an accommodation.”

The Supreme Court will hear oral arguments in the case early next year. Of note, just a week before the Tenth Circuit’s ruling, Abercrombie reached a settlement with Elauf and another Muslim teenager who was denied a job due to her headscarf. Abercrombie has since revised its Look Policy to allow women to wear headscarves for religious reasons. 

Employers wishing to avoid Title VII religious discrimination claims should consider instituting a religious-accommodation policy that lets employees know that if they have a sincerely-held religious belief that needs accommodation, they can seek one, and let them know who to contact. In addition, employers should work with counsel to train HR, managerial and supervisory employees on religious accommodation law and issues.