By Anne-Marie L. Storey, Esq.
The US Supreme Court has recently agreed to hear a case involving a failure to hire where the applicant was a practicing Muslim who wore a hijab. The applicant applied to work at Abercrombie & Fitch in the role as a salesperson (referred to by A&K as “models”). When she presented for her interview, she wore a black hijab. The hiring manager recommended hiring her. However, after consulting with the district manager, the decision was made to reject her application on the basis that she scored low in the “appearance and sense of style” category because the hijab conflicted with the store’s “Look Policy”, which was shared with the applicant. The hiring manager told the district manager that she “assumed” the applicant was a Muslim and wore the hijab for religious reasons but that she specifically did not ask about religion, the hijab, or whether the applicant would need to wear it as an employee. The evidence presented during the case also determined that the applicant had not expressed any religious or other reason for the hijab and did not say she would need to wear it during her employment for religious reasons. She did not ask for an accommodation of any kind to wear the hijab. Instead, the issue of the headscarf was simply not mentioned by either party.
When the applicant was not hired, the EEC sued on her behalf. The federal district court ruled in favor of the applicant. However, the 10th Circuit Court of Appeals reversed and granted summary judgment for the employer.
The issue on appeal was whether an applicant must explicitly inform a prospective employer that she/he requires a religious accommodation in order to sustain a discrimination claim. A&K argued that the applicant in this case did not specifically request an accommodation and therefore one was not required, even though the managers made an assumption that the wearing of the hijab was for religious reasons. The Court agreed, stating that A&K was entitled to summary judgment because the applicant never informed them prior to the hire decision that her practice of wearing a hijab was based on her religious beliefs and that she would need an accommodation in the practice because of the nature of A&K’s clothing policy. The Court noted the fact that the EEOC has discouraged employers from asking about religious beliefs or practices or from making assumptions about those beliefs or practices. Thus, the Court concluded, it is only after an employer is put on notice of the need for a religious accommodation that the EEOC encourages it to actively engage in a dialogue with the applicant about the conflicting religious belief and the possible accommodation that could be provided.
The EEOC, on the other hand, argued that a less restrictive approach is necessary, that is, that notice to an employer of the potential need for an accommodation need not be strictly in the form of a verbal request but can also be based on constructive or some other knowledge of that need.
This case raises some very interesting questions, and once again illustrates the tightrope employers are often called upon to walk between meeting their obligations under the anti-discrimination laws without violating those very laws by asking (or assuming) too much. We will keep you updated as to the ultimate decision by the US Supreme Court.
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