CoExistAs an employment law nerd, I often get giddy when there is a meaty employment law issue being addressed by the U.S. Supreme Court (hopefully Justice Ginsburg took it easy on the sauce prior to oral arguments). But today I’m especially giddy because the Supremes are hearing arguments in the case captioned EEOC v. Abercrombie & Fitch Stores, Inc. The reason for the extra excitement is that I have a pending case that shares a central issue with the Abercrombie & Fitch.

Specifically at issue in the Abercrombie & Fitch case is 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.

In a nutshell, a Muslim teen wore a black headscarf to her job interview with Abercrombie & Fitch. The headscarf would have violated Abercrombie & Fitch’s dress code (called the “Look Policy”). Among other things, the policy prohibits caps and black clothing. The Muslim teen, had worn a headscarf since she was thirteen because she believes it is required by her faith. An assistant manager later told a friend of the teen that she was not hired because of her headscarf.

Abercrombie & Fitch has taken the position that it didn’t violate federal anti-discrimination laws when it decided not to hire he headscarf would because it is up to the applicant or employee to make a company aware of a policy that conflicts with their religious beliefs.

The EEOC alleged that Abercrombie & Fitch had violated Title VII of the Civil Rights Act of 1964. That statute, in part, prohibits employers from refusing to hire someone because of her religious practices unless the employer can show that it would be an “undue hardship” to make allowances for the practice. The EEOC further contended that Abercrombie & Fitch should have made an exception to its “Look Policy” to accommodate the Muslim applicant’s religious beliefs. The trial court agreed with the EEOC, but that decision was appealed where Abercrombie & Fitch won with the Court ruling:

We reverse the district court’s grant of summary judgment to the EEOC. Abercrombie is entitled to summary judgment as a matter of law … Ms. 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.

Bolstering the Court of Appeals decision is that fact that the EEOC’s policy materials encourage employers to actively engage in a dialogue with applicants or employees concerning their conflicting religious practice and possible accommodations that the employer might provide for it only after an employer is put on notice of the need for a religious accommodation.

The question to be answered, however, is what notice is sufficient and whether that notice must come from the applicant/employee. A decision in this case is not expected until later this year.

What will not change, however, is that once the need for a religious accommodation to the employer’s work rule or policy is made known to the employer, the burden rests on the employer to show that it could not accommodate the employee’s religious practice without undue hardship. Typically, religious accommodation suits involve religious conduct, such as observing the Sabbath, wearing religious garb, etc., that result in indirect and minimal burdens, if any, on employers or other employees. And while not always, more often than not, an employer can often accommodate such needs without too much inconvenience or unduly burdening other employees.

For more information about religious discrimination and accommodation, contact employment attorney Jason Shinn.