U.S. Supreme Court Considers Employers’ Obligation to Offer Religious Accommodations
On October 2, 2014, the U.S. Supreme Court agreed to hear oral argument in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., to decide the amount of notice required to trigger the employer’s obligation to provide a religious accommodation under Title VII of the Civil Rights Act. Specifically, the Court will decide whether an employer’s duty to provide a religious accommodation arises only where the employee or applicant directly requests one, or whether the employee or applicant’s religious clothing places the employer on constructive notice of the need for accommodation. The forthcoming decision in EEOC v. Abercrombie may require employers to adjust their religious accommodation policies and procedures, particularly as they pertain to the interview process.
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination in compensation, terms, conditions, or privileges of employment based on an employee or applicant’s sincerely held religious beliefs. This requires employers to reasonably accommodate the individual’s religious obligations absent undue hardship on the employer’s business. Although the nature of the reasonable accommodation that may be warranted varies according to the individuals and employers involved, common examples include modified work schedules, dietary accommodations, or excused variances from company dress codes or grooming requirements. (Less common examples, involving ceremonial daggers and/or objections to photographs, may be the subject of a later blog post.)
To establish a claim under Title VII for a failure to accommodate, a plaintiff must show he or she has a sincere religious belief that conflicts with the employer’s requirements, that the employer was notified of this religious belief, and that the individual experienced an adverse employment action (here, a denial of employment) because of her failure to comply with the job requirement. In EEOC v. Abercrombie, the Court will clarify the parameters of the second requirement – employer notification.
EEOC v. Abercrombie & Fitch
This case arises out of the failure of Abercrombie & Fitch to hire a prospective employee because she wore a religious article of clothing that may have conflicted with the employee dress code.
Abercrombie & Fitch operates several chains of youth-oriented clothing stores. The company refers to its sales employees as “models” because, in addition to their sales responsibilities, they are expected to showcase the company’s clothing brands. The company therefore requires all employees to comply with a “Look Policy,” regulating their wardrobe, jewelry, facial hair, and footwear while at work. The Look Policy also prohibits employees from wearing black “caps.”
The hiring process reflects sales employees’ dual roles. Prospective employees interviewing for a model position with the company are assessed on a three-point scale for their “appearance and sense of style.” Applicants who score less than two points on this metric are not recommended for employment.
These policies and procedures appear to have figured prominently in the company’s interview and decision regarding Samantha Elauf. Elauf identifies as a practicing Muslim and wears a hijab (or headscarf) for religious reasons. Elauf applied for a job as a “model” at one of the company’s stores and was interviewed by a store manager. During the interview, Elauf wore a hijab, but neither she nor the store manager discussed it. Elauf did not state that she was wearing the hijab for religious reasons, and did not request a religious accommodation to wear it at work. The store manager did not ask Elauf about the hijab or why she wore it, and did not say that the company Look Policy would prohibit the hijab at work. During litigation, it was established that although the hijab was not discussed by either party during the interview, the store manager assumed that Elauf was Muslim and wore the hijab for “religious reasons.” It is unclear from this choice of words whether the manager assumed that Elauf wore the hijab as a matter of religious obligation rather than custom or preference.
After the interview, the store manager decided that Elauf should receive two out of three possible points for “appearance and sense of style” – a score that, taken with Elauf’s other qualifications and interview performance, suggested she should be hired. Rather than offering Elauf employment, the store manager apparently questioned whether Elauf could comply with the Look Policy, and consulted a district manager, who decided that Elauf should not be hired because the hijab was not permitted under the Company Look policy, even if worn for religious reasons. The district manager told the store manager to lower Elauf’s “appearance and sense of style” score to one point, which disqualified her from the position, and Elauf was not hired.
The Equal Employment Opportunity Commission sued Abercrombie & Fitch in federal court, claiming that the company violated Title VII by failing to accommodate Elauf’s religious beliefs with an exception to the Look Policy. The court ruled in favor of the EEOC. On the issue of employer notification, the court held that even though Elauf did not formally request a religious accommodation, the company had sufficient notice to trigger its duty to accommodate. Specifically, the court held, “the notice requirement is met when an employer has enough information to make it aware there exists a conflict between the individual’s religious practice or belief and a requirement for applying for or performing the job.” Here, Elauf wore a hijab to the interview and the district manager admitted that she knew Elauf wore the hijab because of her religious belief. These facts were sufficient, according to the district court, to put the company on notice of the potential need for a religious accommodation. On this view, it would appear, the applicant’s obvious religious clothing and the employer’s background knowledge would seem to be sufficient to create a duty to accommodate, much in the same way that the duty to accommodate an obvious physical disability may arise even in the absence of an explicit (and potentially humiliating) request.
The Court of Appeals for the 10th Circuit reversed, holding that the notice requirement could only be satisfied by formal notice of a conflict from the applicant or employee requiring the accommodation. Putting the burden of notice on the applicant or employee, according to the 10th Circuit, is necessary because generally an employer does not have knowledge of an applicant or employee’s private religious beliefs. Only the applicant or employee herself would know if her practices were religious or cultural, or obligatory or optional, such that a religious accommodation would be necessary.
Argument before the Supreme Court is expected later this winter, and we expect a decision by early summer.
Relevance to Employers
Depending on the Court’s ruling, EEOC v. Abercrombie & Fitch could rearrange the traditional allocation of responsibilities between employer and employee on matters of religious accommodations. Once the case is decided, it may be necessary to review your religious accommodation policies and practices to ensure compliance with the ruling, particularly with regards to the interview process.
In addition, the facts of this case may be informative for employers desiring inclusive workplace practices. It stands to reason that an employer should not act on incorrect or uncorroborated assumptions about an employee or applicant’s religious obligations, which may amount to a form of discrimination in its own right. It’s therefore surprising that the parties appear not to have litigated whether assuming an applicant wearing the hijab to an interview would breach the Look Policy, or retroactively downgrading an interview score based on that assumption, were discriminatory acts. Neither consideration, of course, appears to implicate the notice requirement now before the Court. But employers may recognize that it’s preferable to open dialogue with individuals about their religious needs rather than to form assumptions without their input, and that revising interview scores based on external factors would be better avoided. A sounder approach to such problems, which may be more difficult in application but more satisfying in the end, would be to make an employment decision based on the applicant’s qualifications, without regard to apparent religious needs, and after extending an offer of employment, to engage in a dialogue about the extent, if any, to which accommodation may be sought.
We will continue to update you about the status of this case. If you have any questions about the state of your current religious accommodation policies or procedures, or about how to effectively develop more inclusive practices, please contact John P. Keil at (212) 758-7862, or any other attorney at the Firm.
Amanda M. Baker, an associate with the Firm, assisted in the preparation of this article.