The United States Supreme Court is looking at this very issue in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, No. 14-86. This case arises out of a 2008 incident whereby now plaintiff, Samantha Elauf, a Muslim applicant, sought employment with Abercrombie & Fitch. At the time, Abercrombie & Fitch maintained a “Look Policy” which generally instructs employees to present themselves, in dress, in accordance with the stores “East Coast-collegiate brand.” If an employee violates the Look Policy, such as dressing in black clothes and caps, doing so is grounds for termination or in Elauf’s case, a refusal to hire.
Because of her Muslim religion, Elauf wore headscarves, or hijabs, as they are known which comprise a veil that essentially covers the head and chest. While Elauf asked some friends who were familiar with Abercrombie & Fitch’s Look Policy whether her wearing a hijab might present a problem, the consensus seemed to be that it would be okay as long as it wasn’t black in color. Elauf accordingly went forward with the interview.
At no time during the interview did the topic of religion come up. Indeed, despite Elauf wearing a black hijab throughout the interview, no questions were asked and the manager reasonably assumed Elauf was Muslim and would likely wear the hijab while working for Abercrombie & Fitch if offered a position.
After the interview, Abercrombie & Fitch decided not to offer Elauf a position. And, it was rather evident to Elauf that the reason she was not offered the job was because she wore a hijab in violation of the Look Policy.
The U.S. Equal Employment Opportunity Commission filed a complaint against Abercrombie & Fitch alleging violation of Title VII.
Under Title VII of the Civil Rights Act of 1964 it is an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s religion. 42 U.S.C.S. § 2000e-2(a)(1). The term “religion” includes all aspects of religious observance and practice, as well as belief. 42 U.S.C.S. § 2000e(j)
At first consideration, the District Court granted the EEOC’s motion for summary judgment finding it had established a prima facie case for discrimination and shifting the burden to Abercrombie & Fitch to demonstrate that it would suffer undue hardship in accommodating Elauf. The Tenth Circuit reversed and granted summary judgment to Abercrombie & Fitch finding Elauf never expressly asked for a religious accommodation.
So the question to the United States Supreme Court is whether the employer must have actual knowledge of a religious practice (i.e., express notice from the employee or applicant) or if a hunch or reasonable suspicion is sufficient where an employee seeks religious accommodation under Title VII. We will wait and see what the Supreme Court rules, although my guess is the employer should not be left to speculate or play fortuneteller as to the employee’s desires and beliefs. The employee (or applicant) should speak up and if a religious accommodation is what he/she wants then a direct request should be required. What do you think?
This story was originally reported on in The Legal Intelligencer, Thursday April 9, 2015, Vol. P. 3461 at p.7.