What Employers Can Learn From the Abercrombie Religious Discrimination Case

Screen Shot 2014-10-10 at 11.18.54 AMOver the past five years, the EEOC has seen a significant increase in charges of religious discrimination. Between FY 1999 and FY 2008, the EEOC received an average of 2,447 such charges per year. Between FY 2009 and FY 2013, the EEOC has received more than 3,000 such charges each year, with a record 4,151 charges received in FY 2011 alone. With the religious diversity of the country increasing, it is unsurprising that public and private employers and applicants and employees of faith are struggling to figure out each other’s expectations.

Hopefully, the Supreme Court will be able to provide some guidance on the subject. This week, the Court agreed to review a decision from the Tenth Circuit Court of Appeals involving Abercrombie & Fitch’s decision to deny employment to applicant Samantha Elauf because she wore a headscarf to her interview. Abercrombie has adopted a “Look Policy” for its “models” or sales floor employees, which prohibits models from wearing black clothing or “caps” and subjects violators of the Look Policy to discipline up to and including termination.

Elauf is a practicing Muslim and has been wearing a hijab or headscarf since the age of 13 for religious reasons. During the interview, Elauf wore a black headscarf. The interviewing manager assumed that Elauf was a Muslim and wore the headscarf for religious reasons.  But neither she nor Elauf said anything during the interview to confirm or counter that assumption.

Significantly, before the interview, Elauf had been advised by a friend who worked at Abercrombie that she would be permitted to wear a headscarf so long as it was not black. But neither Elauf’s friend — nor the assistant manager with whom the friend had consulted — were involved with Elauf’s hiring process.

The interviewing manager was unsure whether Abercrombie would permit Elauf to wear a headscarf and whether it could be black. She consulted with a district manager who said that Elauf could not be hired because of the headscarf. According to the interviewing manager, she told the district manager that Elauf was Muslim and wore the headscarf for religious reasons; according to the district manager, the interviewing manager never told him that Elauf wore the headscarf because of her religion. The interviewing manager did not hire Elauf, and Elauf’s friend informed her that she had been rejected because of her headscarf.

The EEOC filed a lawsuit alleging that Abercrombie violated Title VII of the Civil Rights Act. Title VII imposes two obligations on employers vis-à-vis applicants and employees of faith. Employers are prohibited from discriminating against an applicant or employee on the basis of religion (e.g. declining to hire an individual because they practice a particular religion). They are also required to accommodate an applicant or employee’s sincerely held religious belief if doing so does not impose an undue hardship (e.g. making an exception to a policy to enable the individual to comply with a religious belief so long as doing so would not impose more than a de minimis hardship). According to the EEOC, Abercrombie violated Title VII by failing to make an exception to the Look Policy and refusing to hire Elauf.

The trial court in Oklahoma concluded that the EEOC was simply required to show that Abercrombie had notice of Elauf’s religious belief, the conflict with the Look Policy, and the potential accommodation. The trial court determined that the EEOC had met this burden by showing that Elauf wore the headscarf to the interview; the interviewing manager assumed that Elauf was a Muslim and wore the headscarf for religious reasons; and the interviewing manager consulted with a district manager because she was uncertain whether the headscarf would be permitted under the circumstances.

On appeal, the Tenth Circuit Court of Appeals reversed the district court and concluded that the EEOC could not prevail by simply establishing this constructive notice. Rather, the majority held that Elauf was required explicitly to tell the interviewing manager that she wore a hijab for religious reasons and request an accommodation from the Look Policy’s prohibition on caps. Since the parties agreed that Elauf had not made any such statement or request, the Tenth Circuit concluded that Abercrombie could not have violated Title VII.

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The Supreme Court agreed to hear an appeal by the EEOC to answer the question at the heart of this case: whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a religious observance or 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.” The case will be argued later this term, and the opinion will likely be issued sometime next year.

Technically, this case concerns religious accommodations. But fundamentally, it is about the assumptions that are made every day in the workplace and the actions that are taken based on those assumptions. As we await the decision and even after, the key takeaway from Abercrombie’s predicament is that employees have assumptions and employers must train them to deal with them.

As in this case, an interviewer may assume that an applicant is acting in a particular way because of his or her religion, that the applicant is required to act in that way, and that the applicant cannot comply with the employer’s policies or perform the job. A novice interviewer may think that the only way to test these assumptions is to ask “Do you wear a headscarf as a part of your religion?” Such a question, however, raises a red flag of potential discrimination and is not phrased to get the information needed for the employer to decide whether the applicant can do the job with or without a reasonable accommodation.

To get at this information, train your interviewers to educate the applicant about the position and ask questions designed to determine whether the applicant can perform the position with or without a reasonable accommodation, i.e. “Our company prohibits employees from wearing head coverings. I notice that you are wearing a headscarf today. Is there any reason you could not comply with that policy when you are working?” The answer will enable you to quickly determine whether the applicant can comply with the company’s policies or whether you may need to engage in a dialogue regarding potential accommodations.

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