Supreme Court takes up case of Muslim woman denied job at Abercrombie & Fitch

On Thursday, the high court agreed to hear the case to examine whether a job applicant must give explicit notice to a would-be employer of any potential request for a religious accommodation – such as wearing a Muslim headscarf at work. 

When a Muslim teen applied for a sales associate job at the Abercrombie Kids clothing store at a shopping mall in Tulsa, Okla., she showed up for the interview wearing a black headscarf.

That fact drew the attention of the interviewer, who contacted a supervisor to ask whether the company’s dress code and its “Look Policy” would permit religious headgear.

She was told to reject the applicant.

After learning why she didn’t get the job, the teen, Samantha Elauf, complained. But instead of complaining to the prospective employer, Abercrombie & Fitch Stores, Inc., she took her grievance to the federal government’s Equal Employment Opportunity Commission.

It is that decision that has now landed Ms. Elauf’s case at the US Supreme Court. 

On Thursday, the high court agreed to take up the case to examine whether a job applicant must give explicit notice to a would-be employer of any potential request for a religious accommodation – such as wearing a Muslim headscarf, known as a hijab, at work. 

Lawyers for Abercrombie say the company never received actual notice of a religious conflict with its company-enforced dress and appearance codes. Absent such notice by the job applicant, how can a company be held legally responsible for failing to confront a religious issue of which it was unaware, the lawyers ask. 

The EEOC says the company was well aware of the underlying religious issue and of its obligation under US law to offer a religious accommodation when possible.

A federal judge agreed with the EEOC. A panel of the Tenth US Circuit Court of Appeals, however, sided with the company.

Now it will be up to the justices to decide which approach should apply. Are companies on notice that they must identify and rectify any underlying religious accommodation issues, even if the job applicant doesn’t explicitly mention them?

Or is it up to the job applicant to inform the prospective employer of potential religious conflicts and request a compromise? 

In urging the high court to take up the case and reverse the appeals court decision, US Solicitor General Donald Verrilli said the appeals court’s approach would make it difficult for job applicants who may never learn that their religious practices clash with job requirements and that they are entitled to an accommodation.

The burden is on the employer to know the law and to avoid discrimination based on a job applicant’s religious beliefs, he said. 

“The holding of the court of appeals is incompatible with [federal anti-discrimination law] because it permits employers to deliberately fail or refuse to hire applicants based on what the employer understands correctly to be aspects of religious observance and practice,” Mr. Verrilli wrote.

There is no extra requirement that the job applicant fully inform the prospective employer of possible religious issues, he said.

Rather than enhance the anti-discrimination purpose of federal law, the appeals court’s approach undermines it, Verrilli said.

“Employers may simply find it easier not to hire the observant applicant – a result that Title VII sought to avoid,” he said. 

In his brief on behalf of Abercrombie, Mark Knueve of Columbus, Ohio, said that Elauf never informed the company that her Muslim faith required her to wear a headscarf on the job. 

“It is axiomatic that an employer must have actual notice that an applicant’s mandatory religious practice conflicts with an employment requirement, and thus of the need for accommodation, before the employer can be held liable under Title VII for failing to accommodate the religious practice,” he said.

At the time she applied for the job at Abercrombie, Elauf was 17 years old. As part of her Muslim faith, she had been wearing a headscarf since age 13.

Prior to her job interview, Elauf asked a friend who worked at the store whether she would be permitted to wear her headscarf. The company maintains a strict dress and appearance code that includes a mandate that employees not wear black. The code also prohibits the wearing of caps and hats. 

Prior to the job interview, Elauf’s friend asked an assistant manager about the headscarf issue. The assistant manager recalled that she once worked with an associate who wore a white yarmulke. The assistant manger opined that a headscarf should not be a problem, especially if it wasn’t black.

After receiving this advice, Elauf showed up for the job interview wearing a black headscarf. The interviewer noticed the headscarf and assumed that Elauf was Muslim. They discussed the dress code but neither of them brought up the headscarf issue.

During the evaluation process for hiring, the interviewer contacted a district manager to discuss the headscarf. The district manager told the interviewer to reject Elauf’s application because the headscarf would violate the company dress code.

Elauf later learned from her friend that she didn’t get the job because of her headscarf. That’s when she went to the EEOC.

In a federal lawsuit, the EEOC charged Abercrombie & Fitch with failing to accommodate the Muslim religious practice of wearing a headscarf.

A federal judge sided with Elauf, ruling that the retail store failed to offer an appropriate religious accommodation. A jury awarded Elauf $20,000 in compensation. 

The appeals court reversed. The court said Abercrombie had not received adequate notice of the need for a religious accommodation. The observations and assumptions of the interviewer did not suffice.

Instead, the appeals court said, only explicit, verbal notice of a conflict coming directly from a job applicant or employee will adequately inform an employee of the need for a potential religious accommodation.

The case is EEOC v. Abercrombie & Fitch (14-86). It will likely be argued early next year, with a decision issued by late June.