The United States Supreme Court recently heard argument on a Title VII failure to accommodate religious beliefs case brought by a 17-year old Muslim woman against Abercrombie & Fitch after Abercrombie refused to hire her because her black headscarf violated its dress code policy. The EEOC prosecuted the case on behalf of the prospective employee and she was awarded damages. The award was ultimately reversed by the Tenth Circuit (which encompasses Denver, CO where this occurred) based upon the finding that, because the prospective employee did not inform Abercrombie that its dress policy conflicted with her religious beliefs, Abercrombie was not required to engage in an interactive process with her in order to determine whether it could reasonably accommodate her religious beliefs. EEOC v. Abercrombie & Fitch, 731 F.3d 1106 (10^th Cir. 2013).

The Current Law “Makes No Sense”

The Circuit (federal appeals) courts are in agreement that an employer must be on notice that an employee or prospective employee has a conflict between his or her religion and one of its policies or practices before it is required to engage in an interactive process to determine whether an accommodation is required. The disagreement appears to be what constitutes sufficient notice. The Tenth Circuit in the Abercrombie case found that the employer must have actual and specific notice from the employee, appearing to find that the employee must make some overt representation to the employer. In that case, the fact that the hiring individual saw the employee wearing a headscarf, assumed she was Muslim and assumed she would need to wear the headscarf in violation of the policy was apparently not enough even where the hiring individual never told the employee that there was a dress policy prohibiting head scarfs or black clothing. To borrow the words of the dissenting judge in that case, this makes no sense.

Although courts in the Second Circuit (which encompasses New York) have, as recently as 2014, stated that, to support a failure to accommodate claim, an employee must specifically allege that he or she informed the employer of the conflict between their religious beliefs and an employment policy or practice, there are also cases which recognize that the employer only needs enough information to understand that there is the existence of such conflict. We believe that observing a woman wearing a black headscarf and assuming that such woman is wearing the headscarf for religious reasons gives the employer sufficient information that there is a conflict between the employee's religious beliefs and the employer's dress code. The outcome in this case seems particularly unfair where the hiring individual never told the prospective employee about the dress policy and never gave her the opportunity to inform them of the conflict. Also, it is undisputed in that case that Abercrombie assumed she was wearing the headscarf for religious reasons and would need to continue to wear it in violation of their policy. Although the employer is in a bit of a Catch 22 because they generally should not ask religious questions in a job interview, the employer could have given her the policy to read and, in any event, assumed she was Muslim because of her headscarf.

Is an employee who does not inform the employer of the need for a religious accommodation out of luck? Not necessarily. Failure to accommodate is only one theory to pursue a Title VII violation. Another is pretext or discrimination meaning that the hiring decision (or other adverse employment action) was based upon animus towards a particular religion. (So if Abercrombie didn't hire the prospective employee because of animus towards Muslims as opposed to because she would be violating the headscarf policy). Another is disparate treatment where a seemingly neutral policy disparately affects a particular religious group. (For example, a case involving the New York City Transit authority where a policy against “head wear” applied to discipline Muslims to the exclusion of other groups). Finally, the First Amendment Free Exercise Clause may protect public employees from religious discrimination (Title VII applies to both private and public employers).

If you feel that you have been the victim of employment discrimination on the basis of religion, it is important to contact an experienced attorney who can determine which theories to proceed on and is familiar with the strict time deadlines and procedural rules applicable to employment cases.

  Giovanna A. D'Orazio  by Giovanna A. D'Orazio |

Giovanna practices employment, land use, commercial, civil and personal injury law at D'Orazio Peterson