Supreme Court Hears Oral Argument on Abercrombie & Fitch Religious Bias Over Hijab

By Diana Uhimov, March 18, 2015.

The U.S. Supreme Court recently heard argument in EEOC v. Abercrombie & Fitch Stores. The Equal Employment Opportunity Commission brought suit against Abercrombie over its refusal to hire a Muslim teen, Samantha Elauf. Although she scored highly in her interview for a sales associate position with the retailer, she was not hired because she wore a black hijab—a Muslim headscarf she has worn since the age of 13. When the interviewer consulted with a manager about the headscarf, she gave Elauf a low score in the category of “appearance and sense of style” and declined to hire her based on the prohibition in the company’s “Look Policy” against wearing “caps”. Abercrombie argued that since Elauf did not explicitly request to be exempt from the rule, they were not required to provide an exemption, despite the manager’s correct assumption that she wore the scarf for religious reasons. EEOC’s argument was that the employer has a duty to make a reasonable accommodation when the it has any type of notice that the prospective employee’s religious practice conflicts with a job requirement.

The Supreme Court agreed in October to hear the EEOC’s appeal from a divided Tenth Circuit ruling that the retailer’s rejection of the candidate due to her headscarf was not discrimination. Their decision was based on the fact that Elauf never explicitly told her interviewer she was Muslim and would need to be excused from the headwear prohibition in the company’s dress code. The EEOC claimed that the employer discriminated in violation of the Title VII protection of religious practice, based on its assumption that she would need an accommodation without ever asking Elauf. Abercrombie’s position was that EEOC regulations and guidance conceded that it was the responsibility of employees and applicants to ask for an accommodation, eliminating any guesswork on the employer’s part. It also maintained that its dress code was a facially neutral dress code, and the EEOC hadn’t made a claim for intentional discrimination because the policy would have treated any headwear, religious or not, the same way. But the Supreme Court was skeptical about how Elauf, as a prospective employee, was expected to know about the headgear policy, much less ask for a reasonable accommodation, if she was never told about it.

At oral argument, the justices probed into whether the employer should presume an accommodation is necessary or whether the employee has to affirmatively ask for one in order for Title VII to apply. The question for the court was one of notice: is an employer on notice that a religious accommodation is needed when an employer should reasonably be aware through the circumstances at hand.

The Solicitor General of the US arguing the case for the EEOC said that the proper course of action for an employer would be to “assume that [there] isn’t a religious problem, to not engage in the stereotyping and assume that the person could comply as they would with somebody who was wearing a headscarf or something else for not religious reasons.” He also recommended that an interviewer in this situation point out to the candidate that the employer doesn’t allow headwear, and then ask if he or she could follow that policy, rather than assume they couldn’t. On the other hand, Abercrombie argued that an employer can’t be liable under Title VII for refusing to hire an applicant based on religious practice unless the company has actual knowledge that a religious accommodation was required, and its knowledge was based on notification by the applicant.

Abercrombie maintained that the EEOC’s rule would present them with two bad options—inquire about a prospective employee’s religious beliefs in an interview to see if an accommodation is necessary, which could open the door to potential bias claims, or face liability for a failure-to-accommodate claim like the EEOC lodged against Abercrombie. However, employee advocates claim that this argument is a red herring and that employers could simply make clear to applicants their policies. They see the Tenth Circuit rule as imposing an extra burden on employees that Congress did not intend.

The Justices were skeptical of Abercrombie’s argument. Their inquiry implied that they believe there is a way to show to a reasonable certainty that someone was being denied a job for religious reasons, without having direct information. Otherwise, an employer would be able to discriminate because of what it perceives to be religious practice as long as the employer didn’t have actual knowledge as to the employee’s religious needs. The Supreme Court is expected to decide this case in the coming months. Its decision will provide employers with clarification as to: (1) the level of knowledge that is sufficient to put the employer on notice of the duty to accommodate; and (2) how the employer could raise the matter with the applicant without the bias that the law prohibits.