EMPLOYMENT LAW UPDATE: Tenth Circuit to employees: Onus on you to speak up about religious accommodation


On October 2nd, the U.S. Tenth Circuit Court of Appeals issued a decision that put employees on notice that the Tenth hijabCircuit expects employees to speak up for their rights regarding religious accommodation.

The decision was in the Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. case and comes on the heels of a settlement between the EEOC and the retailer on similar religious accommodation claims in California.

In this case, the EEOC brought suit against Abercrombie & Fitch after the retailer failed to hire an applicant because she wore a black headscarf (a “hijab”) during her interview. The retailer’s dress code — the “Look Policy” — prohibited employees from wearing black clothing or head coverings. During the interview, neither the applicant nor the interviewing manager discussed the applicant’s wearing of the hijab or her religious beliefs. The interviewing manager testified that she assumed the applicant was Muslim, but did not know this to be certain. The interviewing manager believed the applicant was qualified to work at the retailer, but the district manager stated that the applicant should not be hired because the wearing of a headscarf was inconsistent with the Look Policy.

Following a lawsuit brought by the EEOC on the applicant’s behalf, the district court granted summary judgment in the EEOC’s favor. The issue of damages was submitted to the jury, who returned a $20,000 verdict.

The Tenth Circuit reversed the district court and entered summary judgment in favor of the retailer instead. In reaching this decision, the appeals court held that the record evidence showed that the applicant never informed the retailer (prior to the hiring decision) that the wearing of a hijab was because of her religious beliefs and because the applicant never informed the retailer that the wearing of the hijab would conflict with the Look Policy. The court further noted that it would be inappropriate to place an obligation upon the employer to inquire about the need for a religious accommodation as such a duty would cause the employer to unnecessarily intrude upon the employee’s religious beliefs and could further cause the employer to fun afoul of Title VII prohibitions on asking or speculating about an employee’s religious beliefs.

The bottom line

Employers are under no mandatory obligation to provide religious accommodations until after an applicant or employee has informed the employer that certain conduct is required or forbidden by the individual’s religious beliefs and that there is a conflict between a work rule and an employee’s religious beliefs. However, once employers have knowledge of a need for a religious accommodation, the employer must then engage in the interactive process to determine if an accommodation is possible.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McAfee & Taft | Attorney Advertising

Written by:


McAfee & Taft on:

JD Supra Readers' Choice 2016 Awards
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.