U.S. Supreme Court to Consider Scope of Religious Accommodation in Abercrombie & Fitch Hijab Case

U.S. Supreme Court to Consider Scope of Religious Accommodation in Abercrombie & Fitch Hijab Case

The U.S. Supreme Court recently announced that it would review the Tenth Circuit’s decision in EEOC v. Abercrombie & Fitch.  731 F.3d 1106 (10th Cir. 2013).  In that case, the Tenth Circuit held that an employer is not liable under Title VII for failing to accommodate an applicant’s religious dress unless the applicant explicitly notifies the employer that the dress was based on religious beliefs and seeks an accommodation for that religious dress.  Id. at 1116.

In Abercrombie, the employee, Samanth Elauf, was informed by Abercrombie that she was not hired because she wore hijab, which was inconsistent with Abercrombie’s Look Policy.  Id. at 1114.  The EEOC filed the case against Abercrombie, alleging violations of Title VII, on the basis that Abercrombie refused to hire Elauf because she wore hijab and failed to provide a religious accommodation by making an exception to the Look Policy.  Id.  The Tenth Circuit ruled for Abercrombie & Fitch, finding that the plaintiff never explicitly informed the company that her “practice of wearing a hijab was based upon her religious beliefs.”  Id. at 1122. The court also held that she did not notify Abercrombie that she needed an accommodation for that practice.  Id.

The decision may strike casual observers as unremarkable: why should an employer be liable for failing to accommodate an employee when it did not know the employee needed an accommodation?  It appears, however, that Abercrombie was on notice of Elauf’s religious beliefs.   Before Elauf’s interview, she specifically asked her friend, a current Abercrombie employee, if she could wear the headscarf at Abercrombie.  Elauf’s friend asked the assistant store manager, who responded that he previously worked with an employee who wore a yarmulke at Abercrombie and therefore did not see a problem with Elauf wearing a headscarf.  Id. at 1113.  Furthermore, Elauf wore her headscarf to her interview with a different assistant manager, who “assumed that she was Muslim.”  Id.  Despite overwhelming evidence that Abercrombie knew Elauf was Muslim and wore a headscarf for religious reasons, the Court held that Elauf’s failure to explicitly state that she wore the headscarf for religious reasons barred her accommodation claim.

In response to the Tenth Circuit’s decision, the EEOC issued guidelines on employers’ obligations to accommodate religious dress.  According to that guidance, “In some instances, even absent a request, it will be obvious that the practice is religious and conflicts with a work policy, and therefore that accommodation is needed.”  The guidelines suggest that an employer may be obligated to provide a religious accommodation even when it has not been expressly requested.  For example, if an employer believes a particular article of clothing is religious in nature and fails to hire an applicant because of that dress, then absent undue hardship on the employer, the employer would be liable for its failure to accommodate the individual.  Because Abercrombie’s managers likely believed Elauf’s dress was religious and did not hire her because of that dress, the Supreme Court could hold Abercrombie liable under Title VII.

Court observers will be looking to see whether the Supreme Court will more closely track the Tenth Circuit’s decision or the EEOC’s new guidelines.  In today’s age, the EEOC guidelines highlight that an employer may find it difficult to maintain that it did not know that a woman in a headscarf or man with a yarmulke, wore these religious items for religious reasons.  Accordingly, given the EEOC’s new guidelines and the underlying factual record, Abercrombie may face challenges in convincing the Supreme Court that it was not on notice of Elauf’s religious beliefs.