SCOTUS Will Consider Religious Discrimination Case Against Abercrombie

Ciera Ambrose and Edgar Rivera, Esq.

Recently, the Supreme Court of the United States (“SCOTUS”) heard oral argument regarding whether an employer can be liable under Title VII of the Civil Rights Act of 1964 (“Title VII”) for refusing to hire an applicant based on a religious observance and practice where the employer had no actual knowledge that a religious accommodation was required. In EEOC v. Abercrombie & Fitch Stores, Inc., plaintiff Samantha Elauf, a Muslim teenager, applied for a sales-associate position at Abercrombie & Fitch Stores, Inc. (Abercrombie) and alleged that Abercrombie refused to hire her because she wears a religious headscarf.

Abercrombie, a national chain of “east coast preppy” clothing stores, requires its employees to comply with its “Look Policy” (the “Policy”), which forbids black clothing and caps. If a question arises about the Policy during an interview, or an applicant requests a deviation from the Policy, the interviewer must contact the corporate human resources department, which then determines whether an accommodation should be granted. Ms. Elauf wears a headscarf every day, and did so in her interview, but she neither mentioned her headscarf during her interview nor indicated that she would need an accommodation from the Policy. The interviewer contacted the district manager who directed the interviewer to lower Ms. Elauf’s rating on the appearance section of the application because she wore a headscarf, which resulted in her not being hired.

Abercrombie claims to not have known that Ms. Elauf wore her headscarf for religious reasons and argued that, without such knowledge, there can be no finding of liability. The Equal Employment Opportunity Commission (“EEOC”), on plaintiff’s behalf, argued that when an employer is aware of a potential work-religion conflict, the employer should not be allowed to remain willfully blind, but should initiate the accommodation process. Specifically, employers hold the unique position of knowing whether such conflicts exist, whereas applicants may not know at any time whether their religious practices are in conflict with a rule. Therefore, allowing employers to escape liability by remaining willfully ignorant incentivizes denying employees the opportunity to request accommodations, turning Title VII on its head.

Title VII prohibits private companies from discriminating against its applicants or employees based on their religious beliefs. All people who hold sincere religious beliefs are protected against work-place religious discrimination, including those who belong to organized religions such as Hinduism, Islam, and Judaism, and also those who simply hold religious, ethical or moral beliefs. Religious discrimination includes employers failing to accommodate applicants’ and employees’ religious observations and practices.

An employer must make reasonable adjustments to its work environment to allow an employee to practice his or her religion. Typical accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, modifications to workplace policies or practices, and dress or grooming practices such as particular head coverings, e.g., Jewish yarmulke or a Muslim headscarf, or certain hairstyles or facial hair, e.g., Rastafarian dreadlocks or Sikh uncut hair and beard.

Although Title VII prohibits religious discrimination, incidents of religious discrimination continue to rise. According to the EEOC, incidents of religious discrimination have doubled over the last thirteen years. If SCOTUS rules in Abercrombie’s favor, employers will be able to protect their discriminatory practices behind a shield of ignorance. Such a ruling would chill religious displays and disincentive employers from accommodating an employee’s religious belief or practice.

Employers frequently violate the law by failing to hire or accommodate people with visible religious practices and beliefs. If you believe your employer has discriminated against you on the basis of your religious beliefs, please contact The Harman Firm, LLP.