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Religious Accommodation Fight May Be On Path To High Court

Law360—Abigail Rubenstein

The Tenth Circuit's ruling Tuesday that Abercrombie & Fitch Stores Inc.'s refusal to hire a Muslim woman in a headscarf didn't amount to unlawful religious discrimination because she never informed the retailer of her religious needs created a circuit split that could help the U.S. Equal Employment Opportunity Commission get the issue before the U.S. Supreme Court, lawyers say.

A divided three-judge panel overturned an Oklahoma federal court's judgment in favor of the EEOC, saying Abercrombie was entitled to a judgment in its favor instead because although job applicant Samantha Elauf wore a hijab to her interview, she never directly informed her interviewer that she was a Muslim and would therefore need to be exempted from the company's dress code, which forbids headgear. 

The panel majority concluded that the EEOC's claim must fail because in order to establish a case under Title VII's religion-accommodation theory, plaintiffs must establish that they initially informed the employer that they engage in a particular practice for religious reasons and that they need an accommodation for the practice due to a conflict between the practice and the employer's work rules.

The decision establishes clear-cut guidelines for employers on when to initiate their obligations to begin an interactive process over religious accommodations, but attorneys say that if the EEOC opts to pursue the case further, the issue may be far from settled. 

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If the decision is left in place or ultimately affirmed, it would make it clear that employees must be the ones to broach the topic of religious accommodations in the workplace.

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The majority reasoned that the job applicant or employee must raise the issue of religious accommodations because the answers to the key questions that determine whether an employer has an obligation under Title VII to provide a reasonable religious accommodation ordinarily are only within the ken of the applicant or employee, and an employer's obligation to engage in an interactive accommodation process is only triggered when the employer has answers to those questions.

This is especially true because the EEOC has expressly disapproved of employers inquiring about applicants or employees' religious beliefs or speculating about the answers to such questions, the majority opinion said. 

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A dissent by Circuit Judge David M. Ebel, however, took issue with the majority's "inflexible requirement" that the EEOC show that Elauf informed Abercrombie that its "look policy" conflicted with her religious practice, saying Elauf may not have even known about the conflict. Judge Ebel said neither side should get summary judgment and the case should go before a jury.

The judge explained that he agreed that in an ordinary case, it is the job applicant who must inform the employer that she has a religious belief that conflicts with the requirements of the job for which she is applying, but that a "common sense" exception should be made in situations where the employer has knowledge of a credible potential conflict between its policies and the job applicant's religious practices.

In that case, the employer has a duty to inquire into this potential conflict, Judge Ebel said.

And the dissent maintained that the majority opinion created a conflict among the circuits, since other circuits permit a plaintiff to establish a prima facie failure-to-accommodate claim by establishing that the employer knew, by any means, of a conflict between the plaintiff's religious practices and the employer's work rules.   

This conflict, which the majority endeavors to sidestep by saying Abercrombie lacked such knowledge, could help the EEOC if it does decide to ask the Supreme Court to hear the case, since circuit conflicts are one of the things that tend to peak the justices' interest, lawyers say.

"Most circuits do generally expect that where reasonable accommodation is concerned — and this is equally true whether it is the First Amendment, the [Americans with Disabilities Act] or Title VII — that the employee will ask for it, but this is not an invariable rule in situations where the employer is obviously on notice that an accommodation is required," said Paul W. Mollica of Outten & Golden LLP, who represents employees. "Under disability law, an applicant who shows up in a wheelchair will need to be accommodated, and nobody needs to ask. So, the divide in this case was how strictly to enforce that principle."

"I do think there is a split in sense that an employer can be on constructive notice of need for religious accommodations, and the Tenth Circuit seems to be saying that there is almost no way that can happen," Mollica said.

The Tenth Circuit's requirement that not only the employee request accommodations but also that the worker specify that the practice is based on religious and not cultural practice is also irreconcilable with the law of other circuits, Mollica said.

If the high court justices perceive these conflicts to exist, it could convince them to take the case if the EEOC asks them to.

There are many reasons the case might not make it all the way to the high court, however. The EEOC may opt not to appeal further, or may get an en banc rehearing. The parties may even choose to settle, a definite possibility since Abercrombie and the EEOC recently settled a pair of similar suits in California. Or the justices may choose to not take the case. 

But if the case does end up at the Supreme Court, a decision from the justices would bring clarity for both employers and employees about who is required to say what and when in a situation where religious accommodations should be considered.

"It could be an interesting issue for the Supreme Court to decide — at what level is an employer sufficiently on notice about a religious practice, and once that notice kicks in, even if you don't have complete knowledge, do you have a duty to inquire further?" Shea said. "I would love to see the Supreme Court address that. It would be nice to know."

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The case is U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., case number 11-5110, in the U.S. Court of Appeals for the Tenth Circuit.