Supreme Court Grants Certification for Oral Hearing on Religious Discrimination Case


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The Supreme Court of the United States (SCOTUS) has ended its summer recess and will be hearing oral arguments on a slew of cases that will affect employers everywhere, and one that we think important to bring to the attention of our members in particular.

In Equal Employment Opportunity Commission v. Abercrombie and Fitch Stores (No. 14-86), SCOTUS takes up the issue of whether an employer can be held liable under Title VII of the Civil Rights Act of 1964 (as amended) for refusing to hire an applicant based on “religious observance and practice” where the employer had no notice that a religious accommodation was required and there was no direct, explicit notice of request for accommodation made by the applicant for the position.

In this case, the EEOC claimed that the retailer violated Title VII when it failed to hire a prospective employee, a Muslim woman, because of her religious practice without offering her reasonable accommodation. The woman interviewed for a sales position at Abercrombie while wearing a black hijab (headscarf), a practice inconsistent with the retailer’s policy prohibiting sales employees from wearing black clothing or caps. Apparently at no time during the interview did the woman state that she needed to wear the headscarf for religious reasons nor did she ever request a religious accommodation. There was evidence that Abercrombie did not hire the woman because of her hijab, as that violated a long-held policy on attire for employees.

The lower court concluded that the EEOC had established a prima facie case of discrimination and found in favor of the plaintiff; on appeal, the Tenth Circuit reversed, finding that the EEOC never established that any agent of the retailer involved in the hiring process had actual knowledge of the woman’s religious obligation to wear the hijab. The Tenth Circuit’s position is not in alignment with several other jurisdictions, including the Seventh, Eighth, Ninth and Eleventh, which have adopted the EEOC’s position that the notice is sufficient where the employer has actual knowledge of an employee or applicant’s religious practice even if there was no explicit request for an accommodation.

While the case deals with one retailer’s specific policy and prohibited “look” in its stores, the issue has much farther reaching implications depending on how SCOTUS decides the case. If it upholds the Tenth Circuit’s decision, it will be welcomed by employers everywhere, who often feel that they must walk a very thin tightrope when it comes to religious accommodation. On the one hand, Title VII limits the ability of employers to inquire about an applicant/employee’s religious beliefs, while at the same time employers must reasonably accommodate those very same religious beliefs. The Tenth Circuit’s decision places the onus on the job applicant/employees to inform employers of their religious beliefs, and how, based on these beliefs, accommodation is needed.

In the interim, before SCOTUS takes a position, we encourage our employer contractors to avoid any kind of discrimination by being observant and providing reasonable accommodations for attire, prayer schedules, and vacation time where such accommodations would not cause undue hardship to your companies, and to seek local counsel when in doubt.

Hilary Atkins
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Posted In: Legal

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