The Abercrombie Religious Discrimination Case

Abercrombie enforces a “Look Policy,” which at the time prohibited its sales floor employees ' also known as “models” ' from wearing caps. Elauf wears a “hijab” or headscarf because she is a practicing Muslim and believes that she is required to cover her head in public. Before interviewing with Abercrombie, Elauf spoke to a friend who was a current Abercrombie employee, and who had consulted with an assistant manager. This friend advised Elauf that she would be permitted to wear a headscarf to work at Abercrombie so long as it was not black.

At her interview, Elauf wore a black headscarf. Although the interviewing manager assumed Elauf wore the headscarf for religious reasons, this assumption was neither confirmed nor denied in the interview. The interviewing manager was not the manager who had spoken to Elauf's friend, and had no knowledge of the conversation about whether headscarves would be permissible.

The interviewing manager consulted with a district manager about whether Abercrombie would permit Elauf to wear a headscarf if she were hired, and whether it could be black. The interviewing manager said she told the district manager that Elauf wore the headscarf for religious reasons; however, the district manager denied that the interviewing manager told him that information, and advised that Elauf could not be hired because of the head- scarf. Elauf was not hired, and filed a charge of religious discrimination with the EEOC.

The EEOC's Suit

The EEOC proceeded to file a lawsuit alleging that Abercrombie violated Title VII of the Civil Rights Act. The statute not only prohibits employers from discriminating against an applicant or employee on the basis of religion (e.g., declining to hire an individual because he or she practices a particular religion), but it also imposes requirements on employers to accommodate an employee or applicant's sincerely held religious belief if doing so does not impose an undue hardship (for example, 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.

In the Courts

According to the trial court in Oklahoma, the EEOC was required to have shown that Abercrombie was aware of Elauf's religious belief, that it was in conflict with the Look Policy, and that a potential accommodation could be made for Elauf if hired. The court determined that the EEOC had met these requirements on the basis that Elauf wore the headscarf to the interview; the interviewing manager noticed the headscarf and assumed that Elauf wore the headscarf for religious reasons; and the interviewing manager consulted with a district manager to question whether this would be permitted under Abercrombie's policies.

The Tenth Circuit Court of Appeals reversed the district court, however, concluding that Elauf was required to explicitly tell the interviewing manager that she wore the headscarf for religious reasons and request an accommodation from the Look Policy's prohibition on caps. Since Elauf had not made such requests, the Tenth Circuit concluded that Abercrombie did not violate Title VII.

Last fall, the Supreme Court agreed to hear the appeal by the EEOC, taking up the question of whether an employer can be liable under Title VII for refusing to hire an applicant or for 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 was scheduled to to begin arguments on Feb. 25, 2015, and the Court will issue an opinion by the end of June.

Analysis

The case has elicited the interest of a wide range of groups, including the American Jewish Committee, the Council on American-Islamic Relations, and Lambda Legal Defense and Education Fund, which have filed amicus briefs in support of the EEOC. These and other organizations have warned the Court against affirming what they believe is a hypertechnical and limited interpretation of Title VII. On the other hand, employer groups have filed amicus briefs in support of Abercrombie. They advocate a clear requirement that religious applicants and employees be required to request an accommodation affirmatively before an employer is subject to any liability.

In a few months, the Supreme Court's decision should provide us with more guidance about the circumstances ' if any ' under which those assumptions could result in liability for employment discrimination. As such, while the Supreme Court's decision will explicitly address religious discrimination and accommodations, it will likely offer guidance on dealing with other situations in which potential assumptions and accommodations may arise, such as with people with disabilities or pregnant women. In the meantime, however, employers can take simple steps to hone their practices in an attempt to avoid the protracted litigation in Abercrombie.

At minimum, the facts of this case illustrate the assumptions often present in the workplace between employers and applicants or employees. Let's return to 2008, when Samantha Elauf walked into her interview with Abercrombie & Fitch. We now know that she wears the headscarf for religious reasons. But she could have been wearing the headscarf because of her ethnic heritage, because she was a cancer survivor, or because she thought it was fashionable. We also now know that the interviewing manager suspected that she wore the headscarf for religious reasons, but she could have assumed that Ms. Elauf was wearing it for another reason or for no reason at all. The reasons behind an applicant's or employee's actions and the assumptions underlying an employer's decisions are not always clear, but thoughtfully clarifying these issues may be the best way to achieve better employment decision-making and avoid litigation.

Fundamentally, employers should train their interviewers how to educate the applicant about the position and ask questions that are designed to determine whether the applicant can perform the position with or without an accommodation. For example, an interview might say, “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?” How the applicant responds will allow the employer to determine whether the candidate can comply with the company's policies or whether a further dialogue is necessary regarding issuing potential accommodations.

Following these steps will help ensure that expectations between employers and applicants are better bridged during the hiring process. There is no legal requirement that we permit an employee to wear a headscarf for purposes of fashion, but an accommodation may be required if the employee is wearing it for medical or religious reasons. Asking questions that focus on the requirements of the position and the applicant's ability to fulfill those requirements should enable those responsible to make the best hiring decision from a business and compliance perspective.

Veena A. Iyer is a shareholder in the Labor & Employment Group at Nilan Johnson Lewis PA in Minneapolis. She can be reached at [email protected] or 612-305-7695.

Religious diversity in the United States is increasing, and so are charges of religious discrimination. From 1999 to 2008, the U.S. Equal Employment OpportunityCommission (EEOC) received an average of 2,447 charges of such discrimination each year. Between 2009 and 2013, however, the EEOC received more than 3,000 such charges per year. In 2011 alone, the agency adjudicated 4,151 charges of religious discrimination.

It therefore comes as no surprise that, later this term, the Supreme Court will be deciding a case that raises important questions about what type of action ' or inaction, as in this case ' constitutes religious discrimination. The case ' EEOC v. Abercrombie & Fitch ' involves Abercrombie & Fitch's decision to deny employment to Samantha Elauf because she wore a headscarf to her interview.

Background

Abercrombie enforces a “Look Policy,” which at the time prohibited its sales floor employees ' also known as “models” ' from wearing caps. Elauf wears a “hijab” or headscarf because she is a practicing Muslim and believes that she is required to cover her head in public. Before interviewing with Abercrombie, Elauf spoke to a friend who was a current Abercrombie employee, and who had consulted with an assistant manager. This friend advised Elauf that she would be permitted to wear a headscarf to work at Abercrombie so long as it was not black.

At her interview, Elauf wore a black headscarf. Although the interviewing manager assumed Elauf wore the headscarf for religious reasons, this assumption was neither confirmed nor denied in the interview. The interviewing manager was not the manager who had spoken to Elauf's friend, and had no knowledge of the conversation about whether headscarves would be permissible.

The interviewing manager consulted with a district manager about whether Abercrombie would permit Elauf to wear a headscarf if she were hired, and whether it could be black. The interviewing manager said she told the district manager that Elauf wore the headscarf for religious reasons; however, the district manager denied that the interviewing manager told him that information, and advised that Elauf could not be hired because of the head- scarf. Elauf was not hired, and filed a charge of religious discrimination with the EEOC.

The EEOC's Suit

The EEOC proceeded to file a lawsuit alleging that Abercrombie violated Title VII of the Civil Rights Act. The statute not only prohibits employers from discriminating against an applicant or employee on the basis of religion (e.g., declining to hire an individual because he or she practices a particular religion), but it also imposes requirements on employers to accommodate an employee or applicant's sincerely held religious belief if doing so does not impose an undue hardship (for example, 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.

In the Courts

According to the trial court in Oklahoma, the EEOC was required to have shown that Abercrombie was aware of Elauf's religious belief, that it was in conflict with the Look Policy, and that a potential accommodation could be made for Elauf if hired. The court determined that the EEOC had met these requirements on the basis that Elauf wore the headscarf to the interview; the interviewing manager noticed the headscarf and assumed that Elauf wore the headscarf for religious reasons; and the interviewing manager consulted with a district manager to question whether this would be permitted under Abercrombie's policies.

The Tenth Circuit Court of Appeals reversed the district court, however, concluding that Elauf was required to explicitly tell the interviewing manager that she wore the headscarf for religious reasons and request an accommodation from the Look Policy's prohibition on caps. Since Elauf had not made such requests, the Tenth Circuit concluded that Abercrombie did not violate Title VII.

Last fall, the Supreme Court agreed to hear the appeal by the EEOC, taking up the question of whether an employer can be liable under Title VII for refusing to hire an applicant or for 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 was scheduled to to begin arguments on Feb. 25, 2015, and the Court will issue an opinion by the end of June.

Analysis

The case has elicited the interest of a wide range of groups, including the American Jewish Committee, the Council on American-Islamic Relations, and Lambda Legal Defense and Education Fund, which have filed amicus briefs in support of the EEOC. These and other organizations have warned the Court against affirming what they believe is a hypertechnical and limited interpretation of Title VII. On the other hand, employer groups have filed amicus briefs in support of Abercrombie. They advocate a clear requirement that religious applicants and employees be required to request an accommodation affirmatively before an employer is subject to any liability.

In a few months, the Supreme Court's decision should provide us with more guidance about the circumstances ' if any ' under which those assumptions could result in liability for employment discrimination. As such, while the Supreme Court's decision will explicitly address religious discrimination and accommodations, it will likely offer guidance on dealing with other situations in which potential assumptions and accommodations may arise, such as with people with disabilities or pregnant women. In the meantime, however, employers can take simple steps to hone their practices in an attempt to avoid the protracted litigation in Abercrombie.

At minimum, the facts of this case illustrate the assumptions often present in the workplace between employers and applicants or employees. Let's return to 2008, when Samantha Elauf walked into her interview with Abercrombie & Fitch. We now know that she wears the headscarf for religious reasons. But she could have been wearing the headscarf because of her ethnic heritage, because she was a cancer survivor, or because she thought it was fashionable. We also now know that the interviewing manager suspected that she wore the headscarf for religious reasons, but she could have assumed that Ms. Elauf was wearing it for another reason or for no reason at all. The reasons behind an applicant's or employee's actions and the assumptions underlying an employer's decisions are not always clear, but thoughtfully clarifying these issues may be the best way to achieve better employment decision-making and avoid litigation.

Fundamentally, employers should train their interviewers how to educate the applicant about the position and ask questions that are designed to determine whether the applicant can perform the position with or without an accommodation. For example, an interview might say, “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?” How the applicant responds will allow the employer to determine whether the candidate can comply with the company's policies or whether a further dialogue is necessary regarding issuing potential accommodations.

Following these steps will help ensure that expectations between employers and applicants are better bridged during the hiring process. There is no legal requirement that we permit an employee to wear a headscarf for purposes of fashion, but an accommodation may be required if the employee is wearing it for medical or religious reasons. Asking questions that focus on the requirements of the position and the applicant's ability to fulfill those requirements should enable those responsible to make the best hiring decision from a business and compliance perspective.

Veena A. Iyer is a shareholder in the Labor & Employment Group at Nilan Johnson Lewis PA in Minneapolis. She can be reached at [email protected] or 612-305-7695.