U.S. Supreme Court Hears Religious Discrimination Case of EEOC v. Abercrombie & Fitch

Yesterday, the U.S. Supreme Court heard oral argument in this religious discrimination case which has received much media attention across the country.  The legal question before the Court is: Whether an employer can be liable under Title VII for refusing to hire a job applicant or for discharging an employee based on a “religious observance and 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 facts of the case involve Samantha Elauf, a Muslim job applicant for a sales floor position at an Abercrombie & Fitch store in Tulsa, Oklahoma.  Ms. Elauf wore a headscarf to the job interview, but said nothing to Abercrombie about the fact that she was Muslim, that she wore the headscarf for religious reasons or that she would need an accommodation from the store’s “Look Policy,” which bars employees from wearing caps.  The job interviewer admitted that she assumed Ms. Elauf was Muslim, and wore the head-covering for religious reasons. The evidence in the record indicated that Ms. Elauf’s headscarf did indeed influence her job interview scores and, as a result, the company’s decision not to hire her. Elauf was not told about the headgear policy, and there was no discussion about reasonable accommodations – a Title VII violation, according to the EEOC.

The District Court granted summary judgment for the EEOC.  On appeal, the Tenth Circuit Court of Appeals reversed and granted summary judgment in favor of Abercrombie holding that the burden is squarely on the applicant or employee to advise the employer that he or she has a religious practice that conflicts with a job requirement. The Tenth Circuit observed that religion is an inherently individual matter, and that the applicant or employee is uniquely qualified to know these personal religious beliefs and whether an accommodation is necessary. The Tenth Circuit disagreed with the EEOC’s argument that the employer has a duty to attempt reasonable accommodation when the employer has notice from any source that the applicant or employee has a religious belief that conflicts with a job requirement.

On oral argument before the U.S. Supreme Court, the EEOC argued that under the plain language of Tile VII, an employer who refuses to hire an applicant on the basis of what it correctly understands to be a religious practice has violated the law. The EEOC asked the Court to reject a “rigid notice requirement” arguing that employers who suspect a possible religious conflict could simply advise the applicant of the required work rules and ask whether the applicant could comply and, if not, then offer an accommodation.   On the other side, Abercrombie argued that only actual knowledge of a religious conflict, not a mere guess, would give rise to a violation of Title VII.  Abercrombie further argued that the burden is on the applicant or employee to tell employers if they need a religious accommodation rather than require employers “to speculate, guess or probe” on the issue.   Abercrombie also argued that Title VII does not impose a duty on employers who merely “suspect” a possible conflict with religion to inquire about it or offer an accommodation, reasoning that such a duty would leave employers in an unfair “Catch-22.”

Overall, the Supreme Court justices seemed skeptical of Abercrombie’s position that only actual knowledge of the religious belief was required to put the employer on notice of the duty to accommodate.  The Court’s decision in this case should provide clarification with respect to what level of notice – short of actual knowledge – is sufficient to trigger an employer’s obligation to explore a religious accommodation and, hopefully, some practical guidance for employers moving forward.