Abercrombie and Title VII's Broad Definition of Religion

Abercrombie refers to its sales-floor employees as “models” and expects them to conform to its “look policy” which is intended to promote a “preppy” and “collegiate” style of clothing. The “look policy” specifically prohibits caps and black clothing. According to Abercrombie, the in-store experience, and particularly its “look policy,” is one of the primary ways the store promotes its products.

Elauf was aware that she would need to conform to the overall “look” at Abercrombie, so prior to her interview she had a friend who worked at Abercrombie check if she would be permitted to wear a hijab if she were to be hired. The friend checked with an assistant manager at the store who said he did not think that wearing a hijab would pose a problem ' particularly if the hijab was not black. The assistant manager based his opinion, in part, on the fact that he had previously worked with an Abercrombie employee who wore a yarmulke. Elauf, therefore, was unaware that there was a conflict between her religion and her potential employment.

Elauf went to her job interview wearing an Abercrombie type of T-shirt and jeans along with a hijab. During the interview, neither Elauf nor the interviewer raised the issue of whether she could wear the hijab to work. Elauf's candidacy was then ranked based on a number of criteria, including “appearance.” While the interviewer believed that Elauf was a good candidate for the job, she was unsure of how to rank Elauf in the “appearance” category and consulted with a senior manager. The manager informed the interviewer that Elauf should not be hired because she wore a headscarf. A few days later Elauf learned from her friend who worked at the store why she was not hired.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Elauf arguing that Abercrombie failed to provide a reasonable religious accommodation, which is required under '701(j) of Title VII of the 1964 Civil Rights Act. Title VII prohibits discrimination on the basis of race, color, religion, sex or national origin. Additionally, '701(j) of Title VII specifically includes an affirmative duty of religious accommodation, and employers are required to “reasonably accommodate” an employee's religious observance or practice unless such accommodation would cause the employer “undue hardship.” 42 U.S.C. '2000e(j).

Abercrombie had argued that allowing a sales associate to wear a hijab would negatively impact sales and therefore cause an “undue hardship.” The Tenth Circuit never addressed whether permitting Elauf to wear a hijab to work would cause an “undue hardship,” since the court determined that she had failed to establish a prima facie case of religious discrimination.

In order to establish a prima facie case of religious discrimination under '701(j), an employee must show that: “1) she held a bona fide religious belief; 2) her belief conflicted with a requirement of her employment; 3) her employer was informed of her belief; and 4) she suffered an adverse employment action for failing to comply with the conflicting employment requirement.” Tagore v. USA, 735 F.3d 324, 329 (5th Cir. 2013).

The Tenth Circuit granted summary judgment to Abercrombie, concluding that the EEOC could not establish the second element of a prima facie case of religious discrimination since the company did not have particular actual knowledge that Elauf needed a religious accommodation. According to the court, “a plaintiff ordinarily must establish that he or she initially informed the employer that the plaintiff adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice.” The EEOC had argued that notice does not have to take the strict form of a plaintiff verbally requesting a religious accommodation.

The court's decision has been criticized for its unrealistic and inflexible approach to the notice requirement. Elauf did not ask Abercrombie for an accommodation because she did not know there was a conflict between wearing a hijab and Abercrombie's “look policy,” and assumed ' based on what she had been told by a friend who worked at Abercrombie ' that she could wear the hijab to work. On the other hand, Abercrombie knew of the conflict and knew it was not hiring her because she wore a hijab. As the dissent explained, once “the employer knows of, or should know of, a conflict, or the likelihood of a conflict, the employer is then obligated to interact with the job applicant ' to determine if there is a reasonable accommodation [available].”

Broad Definition Of Religion

One of the most interesting aspects of the majority opinion is that the majority turns Title VII's broad definition of religion on its head ' and uses that broad definition as a justification for denying an employee's claim of religious discrimination. The majority explains that religion is defined very broadly under Title VII by the EEOC, as “a uniquely personal and individual matter” and is not limited to beliefs associated with traditional organized religions.

According to the court, since religion is so broadly defined, the only way an employer could know that an employee holds a specific religious belief is if the employer receives direct explicit notice. Simply knowing that an employee is a member of a particular religious group would not be sufficient since all members of a religious group do not practice their religion in an identical manner. The majority therefore concluded that the broad definition of religion makes it impossible for an employer to know that an employee needs a religious accommodation without explicit direct notice. According to the court, “even if an employer was generally aware of the beliefs and observances that are traditionally associated with a particular religious group and ' [knew] that the applicant or employee specifically claimed to be a member of that group-ordinarily, the employer would still not know whether the conflicting practice in question actually stemmed from religious beliefs ' since religion is a uniquely personal and individual matter.”

In reaching this conclusion, the majority opinion failed to recognize that the EEOC's entire rationale for defining religion broadly was to protect employees whose religious beliefs do not conform to the dogma of an established organized religion ' and not to deny protection to those employees, like Elauf, whose religious beliefs do conform.

When '701(j) was first enacted, courts determined that only religious observances that were mandated by an institutional religion were protected, and other religious beliefs were not protected since they were a matter of personal choice. The EEOC responded by issuing its Guidelines on Discrimination Because of Religion in 1980, 29 C.F.R. '1650, and defined religious practices to: “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious beliefs.” The guidelines specifically stated that religious conduct does not need to be mandated by an institutional religion.

Title VII's broad definition of religion is virtually always raised by employees who are attempting to establish a prima facie case of religious discrimination in cases involving less common religious beliefs. Cases have included a plaintiff who was a member of the Church of Body Modification and therefore claimed to have a religious need to wear and display facial piercings at all times (Cloutier v. Costco Wholesale Corp., 311 F.Supp.2d 190 (D. Mass. 2004)), and a plaintiff who claimed to have a religious need to continually wear a graphic color photograph of an aborted fetus (Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995)). One recent Fifth Circuit case involved an employee who alleged a sincerely held religious belief that required her to wear a kirpan with a blade longer than 2.5 inches. A kirpan is a Sikh religious article that resembles a knife or sword but often has an edge that is curved or blunted. Tagore, supra. Since religion is defined broadly and is a question of personal belief, courts usually do not question the sincerity of an employee's alleged religious belief.

It is therefore striking that the Tenth Circuit relied on Title VII's broad definition of religion as a reason to hold that the plaintiff had failed to establish a prima facie case of religious discrimination. The fact is, Elauf was wearing her hijab based on her religious beliefs as a Muslim, and her prospective employer correctly assumed that she was wearing the hijab because of her religious beliefs as a Muslim. Therefore, there was notice. The dissent did explain that, “the burden ordinarily remains with the job applicant to inform the employer of any conflict between the job's requirements and her religious beliefs and practices, because it will usually be the applicant, and not the employer, who knows of such a conflict.”

Commentary

There have been, and will continue to be, cases where an employee fails to establish a prima facie case of religious discrimination under Title VII because her employer is simply unaware of her religious beliefs and the resulting conflict. However, this is not one of these cases, and the broad definition of religion should not be used against the employee in this case.

Debbie Kaminer is a law professor at the Zicklin School of Business at Baruch College/CUNY. She can be reached at [email protected]. This article originally appeared in our ALM sibling, the New York Law Journal.

The U.S. Supreme Court recently granted certiorari in a religious accommodation case, EEOC v. Abercrombie. This case involves a Muslim teenager, Samantha Elauf, who was denied a job at an Abercrombie & Fitch store because she wore a black headscarf, or hijab, to her job interview. Abercrombie argued not only that the company should not be required to hire and accommodate Elauf, but additionally that they were never given actual notice that she was wearing the hijab for religious reasons.

The U.S. Court of Appeals for the Tenth Circuit granted summary judgment to Abercrombie, holding that the company did not have an obligation to accommodate Elauf since “Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs.” EEOC v. Abercrombie & Fitch, 731 F.3d 1106, 1116 (10th Cir. 2013). In other words, the court held that an employee in a religious accommodation case has an obligation to give direct explicit notice to her employer that her religious practices conflict with a neutral work rule.

Background

Abercrombie refers to its sales-floor employees as “models” and expects them to conform to its “look policy” which is intended to promote a “preppy” and “collegiate” style of clothing. The “look policy” specifically prohibits caps and black clothing. According to Abercrombie, the in-store experience, and particularly its “look policy,” is one of the primary ways the store promotes its products.

Elauf was aware that she would need to conform to the overall “look” at Abercrombie, so prior to her interview she had a friend who worked at Abercrombie check if she would be permitted to wear a hijab if she were to be hired. The friend checked with an assistant manager at the store who said he did not think that wearing a hijab would pose a problem ' particularly if the hijab was not black. The assistant manager based his opinion, in part, on the fact that he had previously worked with an Abercrombie employee who wore a yarmulke. Elauf, therefore, was unaware that there was a conflict between her religion and her potential employment.

Elauf went to her job interview wearing an Abercrombie type of T-shirt and jeans along with a hijab. During the interview, neither Elauf nor the interviewer raised the issue of whether she could wear the hijab to work. Elauf's candidacy was then ranked based on a number of criteria, including “appearance.” While the interviewer believed that Elauf was a good candidate for the job, she was unsure of how to rank Elauf in the “appearance” category and consulted with a senior manager. The manager informed the interviewer that Elauf should not be hired because she wore a headscarf. A few days later Elauf learned from her friend who worked at the store why she was not hired.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Elauf arguing that Abercrombie failed to provide a reasonable religious accommodation, which is required under '701(j) of Title VII of the 1964 Civil Rights Act. Title VII prohibits discrimination on the basis of race, color, religion, sex or national origin. Additionally, '701(j) of Title VII specifically includes an affirmative duty of religious accommodation, and employers are required to “reasonably accommodate” an employee's religious observance or practice unless such accommodation would cause the employer “undue hardship.” 42 U.S.C. '2000e(j).

Abercrombie had argued that allowing a sales associate to wear a hijab would negatively impact sales and therefore cause an “undue hardship.” The Tenth Circuit never addressed whether permitting Elauf to wear a hijab to work would cause an “undue hardship,” since the court determined that she had failed to establish a prima facie case of religious discrimination.

In order to establish a prima facie case of religious discrimination under '701(j), an employee must show that: “1) she held a bona fide religious belief; 2) her belief conflicted with a requirement of her employment; 3) her employer was informed of her belief; and 4) she suffered an adverse employment action for failing to comply with the conflicting employment requirement.” Tagore v. USA, 735 F.3d 324, 329 (5th Cir. 2013).

The Tenth Circuit granted summary judgment to Abercrombie, concluding that the EEOC could not establish the second element of a prima facie case of religious discrimination since the company did not have particular actual knowledge that Elauf needed a religious accommodation. According to the court, “a plaintiff ordinarily must establish that he or she initially informed the employer that the plaintiff adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice.” The EEOC had argued that notice does not have to take the strict form of a plaintiff verbally requesting a religious accommodation.

The court's decision has been criticized for its unrealistic and inflexible approach to the notice requirement. Elauf did not ask Abercrombie for an accommodation because she did not know there was a conflict between wearing a hijab and Abercrombie's “look policy,” and assumed ' based on what she had been told by a friend who worked at Abercrombie ' that she could wear the hijab to work. On the other hand, Abercrombie knew of the conflict and knew it was not hiring her because she wore a hijab. As the dissent explained, once “the employer knows of, or should know of, a conflict, or the likelihood of a conflict, the employer is then obligated to interact with the job applicant ' to determine if there is a reasonable accommodation [available].”

Broad Definition Of Religion

One of the most interesting aspects of the majority opinion is that the majority turns Title VII's broad definition of religion on its head ' and uses that broad definition as a justification for denying an employee's claim of religious discrimination. The majority explains that religion is defined very broadly under Title VII by the EEOC, as “a uniquely personal and individual matter” and is not limited to beliefs associated with traditional organized religions.

According to the court, since religion is so broadly defined, the only way an employer could know that an employee holds a specific religious belief is if the employer receives direct explicit notice. Simply knowing that an employee is a member of a particular religious group would not be sufficient since all members of a religious group do not practice their religion in an identical manner. The majority therefore concluded that the broad definition of religion makes it impossible for an employer to know that an employee needs a religious accommodation without explicit direct notice. According to the court, “even if an employer was generally aware of the beliefs and observances that are traditionally associated with a particular religious group and ' [knew] that the applicant or employee specifically claimed to be a member of that group-ordinarily, the employer would still not know whether the conflicting practice in question actually stemmed from religious beliefs ' since religion is a uniquely personal and individual matter.”

In reaching this conclusion, the majority opinion failed to recognize that the EEOC's entire rationale for defining religion broadly was to protect employees whose religious beliefs do not conform to the dogma of an established organized religion ' and not to deny protection to those employees, like Elauf, whose religious beliefs do conform.

When '701(j) was first enacted, courts determined that only religious observances that were mandated by an institutional religion were protected, and other religious beliefs were not protected since they were a matter of personal choice. The EEOC responded by issuing its Guidelines on Discrimination Because of Religion in 1980, 29 C.F.R. '1650, and defined religious practices to: “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious beliefs.” The guidelines specifically stated that religious conduct does not need to be mandated by an institutional religion.

Title VII's broad definition of religion is virtually always raised by employees who are attempting to establish a prima facie case of religious discrimination in cases involving less common religious beliefs. Cases have included a plaintiff who was a member of the Church of Body Modification and therefore claimed to have a religious need to wear and display facial piercings at all times (Cloutier v. Costco Wholesale Corp., 311 F.Supp.2d 190 (D. Mass. 2004)), and a plaintiff who claimed to have a religious need to continually wear a graphic color photograph of an aborted fetus (Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995)). One recent Fifth Circuit case involved an employee who alleged a sincerely held religious belief that required her to wear a kirpan with a blade longer than 2.5 inches. A kirpan is a Sikh religious article that resembles a knife or sword but often has an edge that is curved or blunted. Tagore, supra. Since religion is defined broadly and is a question of personal belief, courts usually do not question the sincerity of an employee's alleged religious belief.

It is therefore striking that the Tenth Circuit relied on Title VII's broad definition of religion as a reason to hold that the plaintiff had failed to establish a prima facie case of religious discrimination. The fact is, Elauf was wearing her hijab based on her religious beliefs as a Muslim, and her prospective employer correctly assumed that she was wearing the hijab because of her religious beliefs as a Muslim. Therefore, there was notice. The dissent did explain that, “the burden ordinarily remains with the job applicant to inform the employer of any conflict between the job's requirements and her religious beliefs and practices, because it will usually be the applicant, and not the employer, who knows of such a conflict.”

Commentary

There have been, and will continue to be, cases where an employee fails to establish a prima facie case of religious discrimination under Title VII because her employer is simply unaware of her religious beliefs and the resulting conflict. However, this is not one of these cases, and the broad definition of religion should not be used against the employee in this case.

Debbie Kaminer is a law professor at the Zicklin School of Business at Baruch College/CUNY. She can be reached at [email protected]. This article originally appeared in our ALM sibling, the New York Law Journal.