Monday, October 27, 2014

Should Employers Assume Certain Dress is Religion Based?

Is it religious discrimination if an employee doesn’t tell her employer that she requires an accommodation? This is one of the questions that the Supreme Court will address this term in a batch of employment cases that it will hear.

In EEOC v. Abercrombie and Fitch, Samantha Elauf applied for a position as a sales clerk at an Abercrombie store (the company calls sales clerks “models”). One requirement of employment is that applicants have to be willing to wear what the company calls “the look”, which is to essentially dress like the clothes that are sold in the store. Some prohibitions also exist, like wearing heavy makeup, nail polish, black clothing and wearing caps.

According to Abercrombie, if an applicant requests a clothing accommodation for religious or other reasons, the interviewer is required to immediately refer the issue to Human Resources or a designated supervisor who will address the issue.

Ms. Elauf is a practicing Muslim who wears a hijab (headscarf). Before interviewing for a position as a model with Abercrombie she asked two other employees whether she would be allowed to wear a hijab to work at the store. Both employees told her that it would probably be all right, as long as it wasn’t black.

She wore her hijab to the Abercrombie interview, but never directly asked for an accommodation to “the look” policy. The Assistant Manager who interviewed Ms. Elauf never talked about Ms. Elauf’s hijab, although she discussed “the look” policy.

Applicants are scored based on a variety of factors, but essentially based on personality and whether they will reflect the style of the store.  Initially Ms. Elauf’s score made her eligible for hire. After some conversation between her interviewer and another Abercrombie supervisor about her hijab, Ms. Elauf’s score was lowered and she was not offered employment.

The EEOC sued Abercrombie for religious discrimination for failure to accommodate her need to wear a hijab for religious reasons. The District Court granted summary judgment for the EEOC, finding that wearing a hijab was a clear expression of religious belief and Abercrombie denied employment to Ms. Elauf because she wore a hijab, in violation of Title VII protections.

On appeal, the 10th Circuit reversed the district court and found in favor of Abercrombie. It noted that individuals wear hijabs for political, cultural and religious reasons. It found that Ms. Elauf never requested a religious accommodation from “the look” policy so that she could wear her hijab. Because a hijab is not necessarily worn for religious reasons, Abercrombie was never on notice that she required a religious accommodation, concluding that the EEOC did not plead and prove all of the elements of a case of discrimination.

Presumably, the Supreme Court will weigh in on, among other issues, whether Ms. Elauf’s wearing of hijab to her job interview was notice enough that she may require a religious accommodation to the company’s dress policy.

Employers should take notice of this case. While the company is on the winning side of this case right now, it has been defending this case for about six years. Most employers want to avoid this protracted litigation. If an employer has a dress code which prohibits certain clothing or other looks for a valid business purpose, it should consider inquiring of candidates whether they require an accommodation to the dress or appearance policy. By doing so, an employer can address the issue directly from the start and not guess whether clothes or appearance is based on religious requirements, or just personal preference.