On June 1, 2015, the US Supreme Court revived an employment discrimination lawsuit against Abercrombie & Fitch, which refused to hire a Muslim woman because she wore a head scarf. The company said the scarf clashed with its dress code, which prohibited wearing of hats or caps.
Justice Scalia, writing for seven justices, held that Samantha Elauf did not have to make a specific request for a “religious accommodation” in order to obtain relief under Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in hiring. Abercrombie at least suspected that Ms. Elauf wore the head scarf for religious reasons. The company’s decision not to hire her was thus arguably motivated by a desire to avoid accommodating her religious practice.
Ms. Elauf had been awarded $20,000 by a jury, but the United States Court of Appeals for the 10th Circuit overturned the award, saying the trial judge should have dismissed the case before trial. “Ms. Elauf never informed Abercrombie before its hiring decision that she wore her head scarf, or ‘hijab,’ for religious reasons,” wrote Circuit Judge Jerome A. Holmes.
In 2008, Ms. Elauf, then 17, applied for a job in a Tulsa, Oklahoma children’s clothing store owned by Abercrombie & Fitch. She wore a black head scarf but did not say why.
The company declined to hire Ms. Elauf, claiming that her scarf clashed with the company’s dress code. Abercrombie maintained that it should not have been made to guess that she wore the head scarf for religious reasons. It argued that job applicants should not be allowed “to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.”
Yet, the Supreme Court made clear that an employer’s knowledge need not come exclusively from direct, explicit notice from an applicant. In its oral argument to the Supreme Court, the EEOC argued an employer can’t refuse to hire someone based on its understanding of her religious practices if that understanding is correct — as it was in this case, when the assistant manager understood that Elauf was wearing the scarf because she is a Muslim.
The Court held that Ms. Elauf was not required to make a specific request for a religious accommodation to wear a hijab. Nor did it matter that Abercrombie’s policy was neutral, barring all head coverings in favor of a “classic East Coast collegiate style.” The law requires not simply that religious practices “be treated no worse than other practices,” Justice Scalia wrote, but that they receive “favored treatment.” The only exception is when a business can show that accommodating a religious practice would create an “undue hardship” for it.
This ruling would apply to an applicant or employee who seeks not to work on their Sabbath day based on religious observance. Although an employer would not be required to accommodate this scheduling request if it would cause “undue hardship,” the employer would have to seriously consider the religious accommodation. Upon granting it, the employer may, in turn, have the Sabbath observant employee make up for missed time by working additional hours during the week.
If you have questions about religious accommodation or other employment issues in your workplace, please feel free to contact us.
Richard E. Yaskin, Esq.