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EEOC, Abercrombie Square Off In High Court Hijab Battle

Law360—Ben James

The U.S. Supreme Court will hear argument Wednesday in a U.S. Equal Employment Opportunity Commission suit over Abercrombie & Fitch Stores Inc.'s refusal to hire a woman who wore a headscarf but didn't mention her Muslim faith, giving the court a chance to decide whether employers can be liable for failing to accommodate religious practices if they don't get explicit notice from a worker or job applicant.

The nation's highest court agreed in October to hear the EEOC's challenge to a divided October 2013 Tenth Circuit panel ruling that said the clothing retailer's decision to pass over would-be worker Samantha Elauf because of her headscarf didn't amount to religious discrimination.

The panel majority held that Abercrombie had not run afoul of Title VII because Elauf, who wore a hijab to her interview, never directly informed her interviewer she was Muslim and would therefore need to be exempted from the company's dress code, which forbids headgear.

“This case is not about whether the particular individual should or should not wear a headdress,” said Kevin Foley, chairman of the labor and employment practice at Foley & Lardner LLP. “Notice is the question. That's why it has implications that go beyond the dispute at hand.”

The closely watched case has drawn numerous amicus briefs, with the U.S. Chamber of Commerce and others backing Abercrombie and groups including The Council of American-Islamic Relations supporting the EEOC. Religious bias charges filed with the EEOC peaked at 4,151 in fiscal 2011 but have been on the decline since, with 3,549 charges — 4 percent of total claims — filed in 2014. 

Abercrombie passed on hiring Elauf because it correctly inferred that she would need a religious accommodation to comply with the company's “Look Policy,” according to the EEOC, adding that the interpretation of the law advanced by the company would give employers that don't want to accommodate religious practices “every incentive to act on guesses and suspicions.”

When Congress made “religious practice” a Title VII-protected attribute, it barred employers from doing exactly what Abercrombie did, according to a Feb. 18 brief filed on the EEOC's behalf by the U.S. Solicitor General.

The Tenth Circuit broke ranks with other courts when it held that an employer can't be liable under Title VII for refusing to hire an applicant based on religious observance and practice unless the company has actual knowledge that a religious accommodation was required and that knowledge resulted from explicit notice by that applicant, the government asserted.

But Abercrombie said in a Jan. 21 brief that the EEOC's regulations and guidance acknowledged that the onus was on employees and applicants to ask for an accommodation, and that it wasn't the employer's job to guess.

The company's “Look Policy” is a facially neutral dress code and the EEOC hadn't made a claim for intentional discrimination because the policy would have treated any headgear, religious or not, the same way, the company said.

Some lawyers following the case expressed concern that a ruling siding with the EEOC would force employers to either open the door to potential bias claims by asking questions they otherwise would avoid about applicants' religious beliefs to see if an accommodation might be necessary, or face exposure for the type of failure-to-accommodate claim that the EEOC lodged against Abercrombie.

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The EEOC said in a Dec. 3 Supreme Court brief that Elauf was unaware of the company's “Look Policy” when she applied for work.
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In the Abercrombie case, the interviewer could have pointed out that Elauf's headscarf potentially violated company policy and asked why she was wearing it, said Outten & Golden LLP attorney Paul Mollica.

“I can't picture how a decision adverse to Abercrombie & Fitch would mean employers have to start asking about employees' religious practices,” Mollica said.

Mollica predicted that the Tenth Circuit's ruling was on thin ice and that the high court vacating the panel decision and remanding the matter for further review was a likely outcome.

The Tenth Circuit's stance in the Abercrombie case reflects a strict interpretation of Title VII that doesn't square with the language of the statute or what the Supreme Court has done in other Title VII cases, according to Mollica, who added that he didn't share the concern that overturning the challenged panel ruling would put employers in a tough spot.

“I'm more concerned about a rule like the Tenth Circuit issued — that creates out of whole cloth, not based on any language in the statute, a new rule that burdens the employee rights and imposes and extra hurdle that Congress never contemplated,” Mollica said. “I have faith that the court will understand that they should avoid over-lawyering Title VII by creating new rules.”