An employer’s obligation to raise the issue of potential accommodations for religious discrimination under Title VII will soon receive clarification, as the U.S. Supreme Court is set to hear E.E.O.C. v. Abercrombie & Fitch Stores, Inc. this term.

The case arises from a hiring decision made at the Abercrombie Kids store in Woodland Hills Mall in Tulsa, Oklahoma. A prospective female employee, Samantha Elauf, was not hired after she interviewed for a position as a “model” (sales associate) while wearing a head scarf. The head covering violated Abercrombie’s “Look Policy,” which applies to all employees and prohibits certain attire, such as black clothing and caps. Violating the Look Policy subjects an employee to disciplinary action, up to and including termination. Ms. Elauf was a practicing Muslim who wore a head scarf, or hijab, for religious reasons.

The interview

In June 2008, an assistant store manager with hiring authority interviewed Ms. Elauf. The assistant store manager did not know whether Ms. Elauf was Muslim, but assumed that she was. Consistent with Abercrombie’s policy, the assistant store manager conducting the interview did not ask Ms. Elauf questions regarding her religion. During the interview, Ms. Elauf never referenced her head scarf, and she did not ask any questions regarding the dress code, although it was discussed.

No-hire decision

Following the interview, the assistant store manager contacted the district manager, who advised that Ms. Elauf should not be hired because the head scarf was inconsistent with Abercrombie’s Look Policy. At the district manager’s direction, the assistant store manager changed Ms. Elauf’s score from a “2” to a “1” on “Appearance and Sense of Style,” which put her overall score below the hiring threshold.

EEOC brings a lawsuit

The Equal Employment Opportunity Commission (EEOC) originally sued Abercrombie in 2009 in Tulsa federal court, alleging that the company discriminated against Ms. Elauf by failing to hire her because she wore a head scarf and that it failed to accommodate Ms. Elauf’s religious beliefs. Abercrombie argued that allowing Ms. Elauf to wear a head scarf would create an undue hardship, and it disputed whether Ms. Elauf possessed a bona fide, sincerely held religious belief regarding wearing a head scarf.

After finding that Ms. Elauf wore her head scarf because of a bona fide religious belief and that the assistant store manager “knew” that Ms. Elauf wore her head scarf for religious reasons, the Tulsa court reasoned that the decisive factor was not whether the applicant explicitly requested an accommodation, but whether the employer had enough information to be on notice that a religious accommodation was needed. Based on that reasoning, the trial court determined the assistant store manager “knew” that Ms. Elauf wore her head scarf based on her religious belief. Further, because Abercrombie did not explain to Ms. Elauf why she was not hired, Abercrombie created a situation in which it would be impossible to have an interactive process regarding a potential accommodation. At trial, the jury found for the EEOC and awarded Ms. Elauf $20,000 in compensatory damages.

Abercrombie appeals to the Tenth Circuit

Abercrombie appealed the case to the Tenth Circuit Court of Appeals, which overturned the decision of the Tulsa court and jury. The appeals court primarily focused on the fact that Ms. Elauf did not give notice of her religious belief or her need for an accommodation to the employer. The appeals court reasoned that Abercrombie did not have particularized, actual knowledge of Ms. Elauf’s religious beliefs or her need for an accommodation. First, the court noted that Title VII protects religious beliefs—those tied to the ultimate ideas about life, purpose, and death—but not mere personal preferences. The court recognized that individuals sometimes engage in practices associated with religion, but do so for non-religious purposes such as cultural reasons. The appeals court then determined that, at best, Abercrombie assumed that Ms. Elauf was Muslim and wore a head scarf because of her religion, but did not have actual knowledge of those facts because Ms. Elauf did not tell them. Because she failed to advise Abercrombie regarding her religious belief and the need for an accommodation, Abercrombie had no actual knowledge of the need for an accommodation and therefore was not liable under Title VII.

From this case it’s clear that the EEOC takes the position that once an employer assumes or is made aware of the potential need for a religious accommodation due to a conflict between company policies and a religious belief of an employee or potential employee, the employer must attempt to engage in an interactive process to accommodate the potential conflict. According to the EEOC’s position, an employer need not have actual knowledge that the employee engages in an act or practice (such as wearing a head scarf) for sincerely held religious beliefs. But, as the appeals court discussed in its opinion, by adopting this rationale, the agency asks employers to engage in an action which it simultaneously counsels against—making assumptions about potential employees regarding their religion.

Best practices for employers

Regardless of how the U.S. Supreme Court rules, however, it is always a best practice for employers to be aware of the potential need to accommodate a prospective or current employee’s religious beliefs. Abercrombie could have avoided this lawsuit if it had simply advised Ms. Elauf during the interview that Abercrombie had a policy against headwear and asked her if that policy would present a problem for her. By doing so, Abercrombie would have invited Ms. Elauf to discuss the issue, and Abercrombie could then engage in the interactive process without first having made an assumption or asked directly if she wore her head scarf for religious reasons. Presenting issues in a neutral manner during an interview can avoid lawsuits and an unnecessary discussion about religion.