Religious or Not? – How the Notice Requirement Impacts Employment Decisions

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Updated on December 16, 2014: On December 12, 2014, the Equal Employment Opportunity Commission (EEOC) urged the United States Supreme Court to rule against the Tenth Circuit’s decision. The EEOC states the Tenth Circuit was incorrect in its decision by ruling in favor of Abercrombie. The EEOC claims that the law requires an employer to notify employees of the employer’s policies so that the employee can have the necessary knowledge to determine whether her religious observance or custom would be at issue with the policy. The EEOC says that the Tenth Circuit’s interpretation of the law that an employee must notify the employer whether her religious practice will interfere with an employer policy was incorrect, but that an employer must notify the employee of their policies before there is a need for the employer to disclose conflicting religious observances. The argument continues that the employer has a superior knowledge of work policies and sometimes identifies religious conflicts that are not at first apparent to applicants. It appears the EEOC is inferring an employer practice of assuming religious beliefs and potential conflicts not yet confirmed by the employees, which is a practice not encouraged.

The Tenth Circuit held that an employee has a duty to inform the employer of a religious practice or belief that conflicts with an employer policy. The Supreme Court has not ruled on the case.

Abercrombie & Fitch Stores, Inc., a clothing brand popular with pre-teens and young adults, has often been criticized for its “Look Policy,”  a company-wide dress code.  The Look Policy mandates that employees must wear clothing and accessories consistent with what is sold in the store and prohibits certain jewelry and hats.  The dress code applies only to employees; new applicants are not required to comply during the interview process.

Abercrombie conducts minimal print advertising, so the policy exists to enhance the brand through customers’ in-store interactions with employees serving as “sales models.”  The company claims that customers expect stores will comply with the Look Policy and cites these in-store experiences as its best advertising.

Although Muslim women are not required to wear hijabs, many choose to do so for religious reasons.

On October 2, 2014, the United States Supreme Court granted certiorari to hear EEOC v. Abercrombie & Fitch Stores, Inc., a challenge to the company’s Look Policy.  The case was initiated by a young Muslim woman whose application to work at the Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma was denied because she wore a black hijab to her interview.

The Supreme Court will consider whether an employer needs to receive direct, plain notice of religious practices or whether an employee’s act of wearing clothing associated with a particular religion is sufficient for an employer’s Title VII duty to accommodate is initiated.  This is an important issue in many religious discrimination cases along with the issue of what is a recognized religion which activates an employer’s Title VII duty.

The hijab is a headscarf that symbolizes modesty in the Islamic faith.  Although Muslim women are not required to wear hijabs, many choose to do so for religious reasons.

Samantha Elauf began wearing a hijab at age thirteen.  A friend of Elauf’s who worked at the Woodland Hills store asked Assistant Manager Kalen McJilton whether a hijab would be allowed under the Look Policy.  McJilton had previously worked with an employee who had worn a yarmulke, so he responded that he did not anticipate that a hijab would cause any problems.

Elauf interviewed with a different asssitant manager, Heather Cooke, who never mentioned the Look Policy, never asked if Elauf was Muslim, and never told her that Abercrombie did not permit their models to wear hijabs or black clothing. Cooke testified later that she assumed Elauf was Muslim and wore the hijab for religious purposes, but did not explicitly ask. During the interview Elauf never explicitly stated she wore the hijab for religious purposes and that she would need to wear the hijab during her work at the store.

Cooke thought Elauf was a good candidate for the job, but was unsure if the hijab would be an issue, so she called the district manager.  The district manager told her to not hire Elauf because employees were not permitted to wear hats at work and making an exception for Elauf’s hijab would cause a problem with others who desired to wear hats at work.  As a result of this conversation, Elauf was not hired.  Abercrombie had previously permitted the wearing of hijabs for religious purposes at other stores across the country.

Title VII makes it illegal for an employer to discriminate against any individual with respect to their conditions, terms, or privileges of employment based on the individual’s religion.

This lawsuit was brought against Abercrombie & Fitch Stores, Inc. based on religious discrimination.  Title VII prohibits religious discrimination and requires employers to accommodate various religious practices under certain, legitimate circumstances. The U.S. District Court for the Northern District of Oklahoma ruled in favor of the EEOC and Elauf in granting partial summary judgment as to liability, and denying Abercrombie’s motion for summary judgment.  The Court of Appeals for the Tenth Circuit reversed the district court’s order, stating summary judgment should have been for Abercrombie since Elauf never provided notice prior to the hiring decision that she wore the hijab for religious purposes and that she need an accommodation for this practice.  The main issue being considered by the Supreme Court is the notice aspect of the religious accommodation requirement of Title VII.

Title VII makes it illegal for an employer to discriminate against any individual with respect to their conditions, terms, or privileges of employment based on the individual’s religion.  Religion is broadly defined, but includes all aspects of religious observance, practice, and belief that an employer may reasonably accommodate without undue hardship.  Religion includes traditional, organized religions such as Christianity, Hinduism, and Islam, as well as new religious beliefs only subscribed to by a small amount of people.

Further, beliefs are not protected merely because they are held strongly, such as political, social, economic, or personal preferences or philosophies, but must concern ultimate ideas about life, purpose, and death.  Religion is a uniquely personal and individual matter.  In the First Amendment context, the focus is on the individual’s belief system, rather than the beliefs of the religious group as a whole. This reiterates the individual, personal focus definition of religion that the courts have regularly recognized.

Title VII requires an employer to reasonably accommodate a religious need unless such an accommodation would cause an undue hardship on the conduct of the employer’s business.  This religious accommodation requirement only arises when there is a conflict between the employee’s religious practice and the employer’s neutral policies.  To establish this need for accommodation, it must be determined that the employee’s religious practice is in fact a religious practice that requires accommodation.  To determine whether a practice is religion-based, the employee’s motivation must be considered.  Since religion has continuously been held to be a personal and individual conviction, the intent and motivation of the employee is essential and determinative in this context.

She wears the hijab to promote modesty, as is required by the Quran, therefore her motivation is religion-based.

In the case at hand, Abercrombie first challenged the wearing of the hijab as not being necessary to Elauf’s religion since not all Muslim women wear hijabs.  Similarly, the company argued it is not explicitly stated in the Quran that women are required to wear hijabs, just that they are to be modest.  However, the courts have not supported this argument because Elauf’s personal motivation for wearing the hijab is religion-based.  She wears the hijab to promote modesty, as is required by the Quran, therefore her motivation is religion-based.

Abercrombie further argued that the accommodation would be an undue burden on the company and its practices.  The Look Policy is an essential function to their model position, which Elauf applied for, and is an essential part of their marketing and advertising.  The Look Policy and compliance to that policy is essential to the brand.  The courts did not agree with this argument as it had been decided in other cases that it is possible to create reasonable accommodations for a hijab.

The issue in this case revolves around the notice given to the employer of the religious belief that conflicted with Abercrombie’s Look Policy.

To establish a prima facie case of discrimination, the employee must show that she informed her employer of her religious belief that conflicted with an employment requirement.  This has to be the cause of the adverse employment action taken against her.  Once this has been established, the employer may rebut one of the elements of the prima facie case.

The issue in this case revolves around the notice given to the employer of the religious belief that conflicted with Abercrombie’s Look Policy.  Cooke, as an agent of the employer, did not disclose the Look Policy to Elauf during the application process.  Similarly, Elauf did not notify Cooke of a potential religious practice conflict with her wearing a hijab during her shifts.  Abercrombie is known for its “look” and for its models in the store portraying that “look” to the customers to sell clothing.  It can be argued that a job applicant at Abercrombie would have already had notice of the “look” required and whether what they wear on a daily basis would potentially conflict with how one is to dress for the position.

Only after an employer has been given notice of the need for a religious accommodation can the employer engage in conversations with the employee concerning the conflicting practice and possible accommodations.

With the influx of religious discrimination cases in the employment context, many employers are prohibiting managers from inquiring into an applicant’s religious beliefs or practices or making assumptions about those beliefs or practices.  In fact, courts have encouraged employers not to inquire into the religious affiliation of a prospective or current employee during an interview or of a current employee so as to not infringe on the rights an individual has to practice his or her religious beliefs.

This appears to put the burden on the employee or applicant to disclose their religious practices if they would require the employer to accommodate these needs.  However, this burden on the employee leads to a privacy issue as to disclosing such a personal aspect of one’s life when these aspects are not job-related. How then does an employer know whether a religious accommodation is necessary?

Only after an employer has been given notice of the need for a religious accommodation can the employer engage in conversations with the employee concerning the conflicting practice and possible accommodations.  An employer must have actual knowledge of the religious belief and the need for such a religious accommodation before the duty to accommodate arises.  Not only does this actual knowledge requirement exist as to the religious belief of the employee, but also it exists as to the actual knowledge of the need for an accommodation.  While an employer may have heard about the need from other employees or another source, there must be sufficient evidence to support a finding that the employer had actual knowledge of this religious belief.  Employers are also encouraged by the EEOC to refrain from making assumptions about prospective employees.

Depending on the ruling of the U.S. Supreme Court, there could be a serious impact on employees or employers. The decision being made would either result in pro-employer or pro-employee implications.

How will the fact that the religious belief requires accommodation come up?  Is the employee required to disclose up-front their religious practice that may need an accommodation?  Or is the employer required to ask about any religious practices that might require an accommodation? There is a similar question being considered here by the Supreme Court.

Depending on the ruling of the U.S. Supreme Court, there could be a serious impact on employees or employers. The decision being made would either result in pro-employer or pro-employee implications.

On the one hand, if the Supreme Court affirms the decision of the Tenth Circuit Court of Appeals, employees would be required to disclose their religious beliefs to an employer if they would reasonably need a religious accommodation.  At that point, the employer would be able to determine if the accommodation would result in an undue hardship or whether it could be reasonably accommodated.  Such a decision would put more of a responsibility on the applicant or employee to initially disclose their religious needs so the employer could accommodate them.  This could lead to issues because the general view now is that religious affiliations of an applicant or employee are typically considered non job-related factors that should not be considered when hiring or firing an employee.

On the other hand, an adoption of the district court’s interpretation would almost require employers to make assumptions based on appearances as to potential religious accommodations necessary for each prospective or current employee.  This conflicts with the specific caution of the EEOC that employers avoid assumptions or stereotypes as to particular religious beliefs or practices.  It also may conflict with the idea that employers are not to ask about religious beliefs or practices in an interview, since these beliefs are considered non job-related factors.  It also, ultimately, would require employers to make exceptions to Look Policies, as has been done in the past, to accommodate certain religious affiliated apparel, such as a hijab.