The Supreme Court’s headscarf case: What type of notice is the “right” notice?
On Wednesday, the Supreme Court will try to determine if an employer can be held liable for refusing to hire an applicant based on a religious practice, if that employer isn’t given direct notice from an applicant that a religious accommodation is needed.
This case of EEOC v. Abercrombie & Fitch Stores, Inc. arose after Samantha Elauf, a practicing Muslim, was denied employment at one of Abercrombie’s stores based on her inability to adhere to the company’s “Look Policy.”
Per Abercrombie policy, all store employees must wear clothing that is reminiscent of the company’s style, in an effort to bolster the store’s brand. This policy also includes a ban on “caps,” although this term is not clearly defined within the Look Policy, and all black clothing.
After applying for a sales position with Abercrombie, Elauf arrived at her interview wearing a black headscarf. Elauf has worn such a headscarf for many years as part of her religious practice. The assistant manager who interviewed Elauf did not ask about the headscarf but did later admit that she assumed it was related to Elauf’s Muslim faith. After consulting with the store’s district manager and determining the headscarf violated the Look Policy, the assistant manager recommended that Elauf not be hired based on her score in the interview’s “appearance & sense of style” category.
The EEOC then brought this case against Abercrombie for religious discrimination, claiming that Abercrombie failed to accommodate Elauf’s religious practices in violation of Title VII.
The Tenth Circuit reversed the District Court’s grant of summary judgment for the EEOC, reasoning that it is an employee’s responsibility to notify a potential employer of the need for a religious accommodation. Such notification must be direct, so as to give an employer actual knowledge of the necessary accommodation.
Because Elauf did not give Abercrombie any indication that her headscarf was required for religious purposes, the Tenth Circuit found that Abercrombie’s behavior did not violate Title VII.
The EEOC argues that this ruling is incorrect, because it places the burden of requesting accommodation on employees and gives employers a way to circumvent the protections afforded by Title VII. According to the EEOC, if the Tenth Circuit’s “direct notice” requirement stands, job applicants will suffer if they are unaware of a company’s policy that conflicts with their religious practices.
Abercrombie, however, notes the discrepancy between this reasoning and guidance given by the EEOC. Per EEOC regulations, employers are not allowed to make assumptions or ask potential employees about their religious practices. The EEOC instead suggests that employees ask employers for any accommodations they may need, at which point employers must comply if no undue hardship is present.
Abercrombie points to this guidance as directly in conflict with the EEOC’s argument that an employee should not have to directly request an accommodation.
The Supreme Court is tasked with sorting out this discrepancy and determining what type of notice is required for employers to be considered in violation of Title VII’s failure to accommodate provisions.
Juliana Stiles is a pro bono intern at the National Constitution Center. She is also a second-year student at the University of Pennsylvania Law School.
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