At the opening of its new term last week, the U.S. Supreme Court agreed to hear the Equal Employment Opportunity Commission’s appeal of a lower court decision dismissing a Title VII claim against the Abercrombie clothing retailer for failure to hire an applicant who wore a headscarf, but who never explicitly requested a religious accommodation.
EEOC v. Abercrombie & Fitch Stores, Inc. involves a Muslim applicant who wore a hijab to her job interview. She never identified herself as Muslim or requested any accommodation to allow her to wear the hijab during work. Conversely, the interviewing manager never questioned the applicant about her dress or whether her religion permitted her to remove it during working hours. Abercrombie rejected the applicant based on its policy regarding dress and appearance.
The EEOC sued the defendant for failing to provide a religious accommodation. The Tenth Circuit Court of Appeals reversed a grant of summary judgment for the EEOC, concluding that under Title VII, the employee or applicant has the burden of affirmatively requesting a religious accommodation. A dissenting judge asked how the applicant was supposed to request an accommodation when she was not fully aware of the store’s appearance policy, and the fact that her hijab would be used under the policy to disqualify her from employment.
The Supreme Court’s acceptance of review in this case may signal its discomfort with the Tenth Circuit’s legal reasoning. In its appeal brief, the EEOC argued that the Tenth Circuit’s notice rule varied from other federal circuits that have concluded that employers with sufficient information to infer a need for religious accommodation are required to consider such measures. In this case, the EEOC claimed that if Abercrombie made an employment decision based on the hijab, it had an obligation to raise the issue with the applicant to determine if it was a religious practice, and if so to explore possible accommodations.
Oral arguments in this case will be scheduled for later in the Court’s term, with a decision expected next year.
