Insights: The Abercrombie & Fitch employee religious accommodation case
By Veena A. Iyer, Nilan Johnson Lewis
In the past five years, the EEOC has seen a significant increase in charges of religious discrimination. With the religious diversity of the country increasing, it is unsurprising that public and private employers and their applicants and employees of faith are struggling to figure out one another’s expectations. The Supreme Court recently agreed to hear an appeal by the EEOC involving Abercrombie & Fitch, and hopefully, will be able to provide some guidance on the subject.
The Supreme Court will review a decision from the Tenth Circuit Court of Appeals involving Abercrombie’s decision to deny employment to Samantha Elauf because she wore a headscarf to her interview. Abercrombie has adopted a "Look Policy" for its "models" or sales floor employees, which prohibits models from wearing black clothing or "caps" and subjects violators of the Look Policy to discipline up to and including termination.
At issue is Title VII of the Civil Rights Act which imposes two obligations on employers vis-à-vis applicants and employees of faith. Employers are prohibited from discriminating against an applicant or employee on the basis of religion (e.g. declining to hire an individual because they practice a particular religion). They are also required to accommodate an applicant or employee's sincerely held religious belief if doing so does not impose an undue hardship (e.g. making an exception to a policy to enable the individual to be able to comply with a religious belief so long as doing so would not impose more than a de minimis hardship).
Case Background: EEOC v. Abercrombie & Fitch
Elauf is a practicing Muslim and has been wearing a hijab or headscarf since the age of 13 for religious reasons. In 2008, when she was 17, Elauf was interested in applying for a job at AF Kids in Tulsa, Oklahoma. Prior to submitting her application, Elauf asked a friend who worked at the same location whether the company would permit her to wear a headscarf. The friend asked an assistant manager, who stated that he had worked at AF with someone who had worn a white yarmulke and believed that Elauf's headscarf would not pose a problem so long as it was not black. The friend relayed this message to Elauf, and Elauf was agreeable to the restriction on the color of her headscarf. Elauf submitted her application for the position, and she was selected for an interview. Notably, neither Elauf's friend nor the assistant manager with whom Elauf's friend had consulted were involved in the interview process.
During the interview, Elauf wore a black headscarf. The interviewing manager assumed that Elauf was a Muslim and wore the headscarf for religious reasons. During the interview, the interviewing manager brought up the Look Policy generally, but she did not state that it generally prohibited employees from wearing caps. Later, the interviewing manager was unsure whether Abercrombie would permit the headscarf to be worn and whether it could be black. Her manager was unsure so she consulted with a district manager who said that Elauf could not be hired because of the headscarf. Significantly, the interviewing manager states that she told the district manager that Elauf was Muslim and wore the headscarf for religious reasons; the district manager denies that the interviewing manager provided any such information. The interviewing manager did not hire Elauf, and Elauf's friend informed her that she had been rejected because of her headscarf.
The EEOC filed a lawsuit alleging that Abercrombie violated Title VII by refusing to hire Elauf and failing to make an exception to the Look Policy.
The trial court in Oklahoma concluded that the EEOC was simply required to show that Abercrombie had notice of Elauf's religious belief, the conflict with the Look Policy, and the potential accommodation. The trial court determined that the EEOC had met this burden by showing that Elauf wore the headscarf to the interview; the interviewing manager assumed that Elauf was a Muslim and wore the headscarf for religious reasons; and the interviewing manager consulted with a district manager because she was uncertain whether the headscarf would be permitted under the circumstances.
On appeal, the Tenth Circuit Court of Appeals reversed the district court and concluded that the EEOC could not prevail by simply establishing this constructive notice. Rather, the majority held that Elauf was required explicitly to tell the interviewing manager that she wore a hijab for religious reasons and request an accommodation from the Look Policy's prohibition on caps. Since the parties agreed that Elauf had not made any such statement or request, the Tenth Circuit concluded that Abercrombie could not have violated Title VII.
What Employers Can Learn
Technically, this case concerns religious accommodations. But fundamentally, it is about the assumptions that are made every day in the workplace and the actions that are taken based on those assumptions. As we await the decision and even after, one of the key takeaways from Abercrombie’s predicament is that employers must be cognizant that their employees have assumptions and train them to deal with them.
In a situation where a woman wearing a headscarf walks into a workplace, an interviewer know enough about Islam to suspect that the applicant is wearing the headscarf for religious reasons. But the interview should not assume that this is the reason the applicant is wearing the headscarf or that she would insist on wearing the headscarf at work.
Instead, interviewers should inform the applicant of the employer's policy regarding head coverings and ask if she can comply. There will be a range of replies, but either way, asking questions in a way that focuses on work requirements allows the decision maker to initiate a dialogue and avoid a charge of discrimination as a result of saying too much or too little.
The question of what constitutes an undue hardship—and what an employer must do to establish one—is not before the Supreme Court in the Abercrombie case. According to prior case law, an undue hardship is anything more than de minimis, but it's likely that with the uptick in religious discrimination and accommodations cases, the highest court in the land will be asked to expound on what that means in the coming years. Of course, once an applicant or employee requests an accommodation, the employer must determine whether to honor that request or deny it because the accommodation is unreasonable or would impose an undue hardship.
Veena A. Iyer is an attorney in the Labor & Employment Group at Nilan Johnson Lewis PA in Minneapolis. Veena currently advises and represents employers. She can be reached at [email protected] or (612) 305-7695.