On February 25, 2015, the United States Supreme Court heard oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc, a case where religious articles of clothing have come to clash with an employer’s neutral dress code policy.  In this case, a Muslim teenage girl applied for a job at an Abercrombie & Fitch store.  Abercrombie requires all of its employees to adhere to a “Look Policy” which, among other things, prohibits wearing black clothing or headgear.  Consistent with her religion, the applicant normally wore a hijab, a type of headscarf, for modesty purposes.  The applicant’s headscarves, however, were different than those frequently worn by devout Muslim women.  Unlike others, her headscarves did not cover her neck, were not tightly bound, and were often bought at ordinary mall clothing stores. fashion-victim-300x201

The applicant met with the store manager to interview for a position as a “model,” Abercrombie’s term for in-store floor employees.  She wore a black headscarf during the interview, but the issue of whether she could wear it at work was never discussed.  As most prudent employers do, Abercrombie trains its managers not to ask applicants about their religion during an interview.  The store manager followed Abercrombie’s model interview guide and asked the standard questions.  When given an opportunity to ask questions at the end of the interview, the applicant did not ask any.

The store manager then contacted her district manager to ask about the headscarf, as she often did in the case of other items prohibited by the Look Policy, such as tattoos or piercings.  The store manager “assumed” the applicant was Muslim and “figured” she wore the headscarf for religious reasons but did not know.  The district manager instructed the store manager not to hire the applicant because her headscarf violated the Look Policy.

The EEOC sued Abercrombie on applicant’s behalf, alleging that Abercrombie’s failure to hire her was illegal and failed to accommodate her religious beliefs by making an exception to the Look Policy.  In general, to establish this claim, the employee must show that (1) she has a bona fide religious belief that conflicts with a requirement of employment; (2) she informed her employer of this belief; and (3) she was not hired for failure to comply with the conflicting requirement.

The question the Supreme Court must decide is whether the potential employer must have “actual” knowledge and whether that knowledge must explicitly come from the applicant.  The EEOC argued that the employer is legally obligated to begin a dialogue about religious accommodation when it has enough information to “assume” or “correctly understand” there may be a need for it.  Abercrombie argued that the obligation to accommodate is not triggered until the employee herself requests it because the employee is in the best position to know she needs one.  Abercrombie also took the position that the EEOC’s approach would actually encourage employers to stereotype and treat people differently based upon what the employer “assumes” to be their religion “which is precisely the opposite of what Title VII wants.”

Interestingly, the Supreme Court justices did not appear enamored with the arguments of either side.  Questions from the bench tended to characterize the EEOC’s approach as too unworkable and difficult to define how much of an “assumption,” “understanding,” or any of the many other synonyms is required to trigger an employer’s legal obligations.  Similarly, the justices’ questions characterized Abercrombie’s position as overly technical and dismissed the idea that an employer could not take steps to identify accommodation issues without asking “stereotyping” questions.

Until the Supreme Court issues its decision, perhaps the clearest advice in avoiding such an “awkward conversation” comes from the Court itself.  Justice Sotomayor wondered “why can’t the employer just simply say, we have a Look Policy that doesn’t permit [a certain item].  Can you comply with that policy?”  Justice Alito further refined the question: rather than asking whether an applicant can comply, “Just say ‘do you have any problem with that?’”  Justice Sotomayor’s and Alito’s approach appears to have shades of a disability accommodation approach (“Can you perform these required job functions with or without a reasonable accommodation?”) and may turn out to be the Court’s preferred middle ground.

The Abercrombie case will certainly have effects on what kind of notice and how much is required to trigger an employer’s obligation to accommodate religious beliefs and, for hiring personnel, the types of questions which are appropriate during job interviews.  The Supreme Court’s decision is expected this summer.  Stay tuned for updates and, if you suspect that an employee’s religion may clash with your company’s rules, consult competent employment counsel to avoid a clash in court.

Mark focuses his practice in the area of labor and employment law. He regularly defends employers – both public and private sector – in employment-related lawsuits in the state courts of West Virginia and the federal District Court for the Southern District of West Virginia, as well as charges filed before the West Virginia Human Rights Commission, the West Virginia Public Employees Grievance Board, and the federal Equal Employment Opportunity Commission.
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