Right to Religious Freedom in the Workplace: U.S. Supreme Court to Decide Whether Abercrombie Violated Title VII by Refusing to Hire Muslim Woman with Headscarf

BY CAROLINE MCGEE — The Roberts Court has made headlines in recent years for its controversial decisions involving the right to religious freedom. The docket for the October 2014 term indicates that the Court remains intent on resolving disputes surrounding this fundamental First Amendment right. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the Court will address whether an employer violates Title VII by refusing to hire an otherwise qualified individual where the individual does not provide express notice to the employer of a sincerely held religious belief and the accompanying need for a religious accommodation.

In Abercrombie, seventeen year-old Samantha Elauf applied for a job at an Abercrombie Kids store. Ms. Elauf had worn a headscarf (“hijab”) since she was thirteen. During her interview, the store’s assistant manager did not ask Ms. Elauf about her hijab, despite Abercrombie’s strict “Look Policy.” The Look Policy, which Abercrombie revised in 2013, requires employees to dress in the type of clothing that is sold in its stores. At the time Ms. Elauf applied for the job, the policy prohibited employees from wearing black clothing and “caps.”

After the interview, the assistant manager believed Ms. Elauf was a good candidate for the job, but consulted with the district manager regarding Ms. Elauf’s hijab. The assistant manager later testified that she “assumed that [Ms. Elauf] was Muslim,” and “figured that was the religious reason why she wore her head scarf.” The district manager said that Ms. Elauf should not be hired because her hijab was inconsistent with Abercrombie’s Look Policy.

Title VII of the Civil Rights Act of 1964 forbids employers from refusing to hire any individual on the basis of religion. Where there is a conflict between an applicant’s religious practice and an employer’s policy, Title VII’s implementing regulations require an employer “to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business.” In religious accommodation cases, courts have applied a burden-shifting approach to determine whether a claim survives summary judgment. Specifically, the employee or applicant must show that (1) she had a bona fide religious belief that conflicts with an employment requirement; (2) she informed her employer of this belief; and (3) she was fired or not hired for not complying with the conflicting employment requirement.

When Abercrombie declined to extend a job offer to Ms. Elauf, the Equal Employment Opportunity Commission (“EEOC”) filed suit on her behalf. The EEOC alleged that Abercrombie violated Title VII by refusing to hire Ms. Elauf because she wore a hijab and by failing to accommodate her religious beliefs. After the district court denied summary judgment to Abercrombie, the Court of Appeals for the Tenth Circuit reversed, concluding that Abercrombie was entitled to summary judgment because Ms. Elauf never informed Abercrombie that she wore a hijab for religious reasons and that she would need an accommodation.

This is not the first time a federal court of appeals has addressed the issue of notice in religious accommodation cases. In Dixon v. The Hallmark Companies, Inc., the Court of Appeals for the Eleventh Circuit held that an employer may be liable under Title VII for failure to accommodate even absent an employee’s express communication that his or her sincerely held religious belief conflicts with an employment requirement. There, the defendant employer argued that the plaintiff employees did not expressly tell their supervisor that they did not want to take down their religious artwork because of their religious beliefs. The court concluded that the supervisor’s awareness of the tension between the prohibition of religious artwork and the plaintiffs’ religious beliefs was enough to satisfy the second prong of the burden-shifting analysis.

In deciding Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the Supreme Court should employ the same reasoning the Eleventh Circuit used in Dixon — that notice of the need for an accommodation is not required to hold an employer liable for religious discrimination under Title VII. Because Abercrombie was aware that Ms. Elauf wore a hijab and assumed she did so for religious reasons, Ms. Elauf was not required to give notice of the need for an accommodation. Moreover, as the dissent in the Tenth Circuit’s opinion correctly points out, Abercrombie had superior knowledge of the conflict between its Look Policy and Ms. Elauf’s religious practice. Ms. Elauf was unaware that wearing a hijab conflicted with the Look Policy. Thus, it would be unfair to require Ms. Elauf to ask for a religious accommodation. In contrast, Abercrombie knew that Ms. Elauf wore a hijab, assumed that she did so for religious reasons, and refused to hire her because of her religious practice. Therefore, Abercrombie’s refusal to hire Ms. Elauf was unlawful religious discrimination and the Supreme Court should hold the company accountable.

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