The Supreme Court of the United States is poised to decide a case that should clarify employers’ obligations to provide applicants with accommodations for their religious practices. Simply put, the question is whether applicants must notify companies of any religious beliefs that would prevent them from abiding by workplace rules or whether employers must provide notice of their company policies to assess whether a need for an accommodation exists. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.—a case brought by a woman who wore a head scarf to an interview for a retail job for which she ultimately was not hired—the Court is expected to decide which party should bear this burden of notice.
Abercrombie & Fitch, a retail clothing store geared toward young consumers, maintained a “Look Policy” that applied to all sales floor employees (whom the store referred to as “models”). According to this policy, employees were required to dress in a manner consistent with the styles of clothing sold at the store. In addition, under the Look Policy, employees were not permitted to wear black clothing or caps.
Abercrombie claimed that the Look Policy was critical to its brand because it relies less on traditional media (such as print and television advertisements) and more on its in-store experience to promote the store’s merchandise. Thus, models must adhere to the Look Policy in order to accurately represent the brand.
During the interview process, Abercrombie managers assess applicants on their appearance and style and inform applicants of the Look Policy. Abercrombie also instructs managers to refrain from asking applicants about religion. If a prospective employee requests a deviation from the Look Policy during an interview, Abercrombie requires managers to contact its corporate human resources (HR) department or a direct supervisor. Abercrombie permits its HR managers to grant accommodations if doing so would not harm the brand.
Seventeen-year-old Samantha Elauf applied for a job as a model at a Tulsa, Oklahoma Abercrombie store. Before her interview, Elauf, who claims to be a practicing Muslim and who wears a hijab, asked her friend, Farisa Sepahvand, who was a store employee, whether wearing a hijab to work would be permissible. Sepahvand raised the issue with the store’s assistant manager who told her that employees may wear headscarves as long as they are not black.
Elauf later met with Heather Cooke, the store’s assistant manager, for an interview. During the interview, Elauf who was wearing a black hijab, did not inform Cooke that she was Muslim or that she wore the headscarf for religious reasons. After the interview, Cooke scored Elauf’s candidacy using Abercrombie’s official interview guide. Elauf’s score of “meets expectations” amounted to a recommendation of hiring.
To clarify whether wearing a black hijab would be a problem for an Abercrombie model, Cooke consulted with her district manager, Randall Johnson. Cooke alleges that Johnson told her that Elauf should not be hired and instructed Cooke to change her interview score so that she would not be recommended for hiring. Sepahvand later told Elauf that she had not been hired because of her hijab.
The U.S. Equal Employment Opportunity Commission (EEOC) filed suit claiming that Abercrombie failed to provide a reasonable religious accommodation for a prospective employee in contravention of Title VII of the Civil Rights Act of 1964. Specifically, the EEOC argued that Abercrombie “refused to hire Ms. Elauf because she wears a hijab” and “failed to accommodate her religious beliefs by making an exception to the Look Policy.”
Abercrombie argued that Elauf had failed to inform the company of any conflict between its Look Policy and her religious practices and that the proposed accommodation of permitting her to wear a hijab would have imposed an undue hardship on the company. The trial judge ruled in favor of the EEOC, and the case was appealed to the Tenth Circuit Court of Appeals.
The Tenth Circuit’s Decision
In a 93-page opinion, the Tenth Circuit sided with Abercrombie. In deciding the case, the court established the following rule:
to establish a prima facie case under Title VII’s religion-accommodation theory, a plaintiff ordinarily must establish that he or she initially informed the employer that the plaintiff adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice, due to a conflict between the practice and the employer’s neutral work rule.
In explaining its reasoning, the court stressed that the applicant must give the employer “explicit notice” of a religious practice that conflicts with a work rule for which the applicant would need an accommodation. The Tenth Circuit thus set the “notice” standard high by demanding that notice of an applicant’s need for a religious accommodation “be based on an employer’s particularized actual knowledge of the key facts that trigger its duty to accommodate.”
According to the court, Elauf had not informed Abercrombie that she must wear her hijab for religious reasons and that she would need an accommodation to comply with Abercrombie’s Look Policy. Moreover, the court concluded, none of the Abercrombie agents responsible for or involved in the hiring process had particularized, actual knowledge that Elauf wore a hijab because of a religious belief and required an accommodation for the practice. According to the court,
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 obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie’s clothing policy.
Cooke’s knowledge that Elauf elected to wear a hijab, the court reasoned, “would be far from sufficient information to provide her with the requisite notice that would trigger an employer’s duty to accommodate.” Because Elauf did not show that she had informed Abercrombie that she has a bona fide religious belief that conflicts with an work rule (i.e., the requirements under the Look Policy), her Title VII religious accommodation claim failed. Thus, the court ruled that Abercrombie was entitled to summary judgment.
Cert. Granted and Oral Arguments
The EEOC appealed, and the Supreme Court agreed to hear the case in October of 2014 to decide the following question:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or 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.
On February 25, 2015, both parties argued the case before the Court. The retail store’s argument mirrored the Tenth Circuit’s reasoning: Employers are entitled to actual knowledge of a need for an accommodation resulting from an employee’s or applicant’s direct, explicit notice.
The EEOC took the opposite position and argued for a less stringent notice standard. The federal agency has stated that employers that perceive a religious conflict are not discouraged from seeking to confirm whether such a conflict exists. Moreover, in its brief submitted to the Court, the EEOC has argued that an employer “believing that an applicant’s faith would conflict with a work rule need not inquire into the employee’s faith to confirm or dispel the conflict.” During oral arguments, the EEOC argued that Cooke assumed that Elauf wore a headscarf because she was religious and that such notice would be sufficient.
It will be interesting to see how the Court resolves two issues in this case: (1) which party is more appropriate to bear the burden of notice, and (2) whether employers will be expected to have “actual knowledge” of a conflict or whether it will be sufficient for employers to merely “understand” or “assume” that a conflict exists for a duty to accommodate to arise. The Court will issue its decision within the next few weeks.
Hera S. Arsen, Ph.D. is managing editor of firm publications and is based in the Torrance, California office of Ogletree Deakins.