Wednesday, October 02, 2013

10th Circuit Requires Strict Notice For Religious Accommodation, Ruling In Favor of Abercrombie & Fitch

In EEOC v. Abercrombie & Fitch Stores, Inc., (10th Cir., Oct. 1, 2013), the U.S. 10th Circuit Court of Appeals ruled in favor of Abercrombie & Fitch in a case in which a Muslim applicant for employment who wore a hijab (Muslim headscarf) to her employment interview was not hired. The EEOC claimed that Abercrombie failed to provide reasonable religious accommodation to Samantha Elauf whose hijab conflicted with Abercrombie's "look policy."  The court held that the EEOC had failed to show that Elauf had informed Abercrombie that she wore her hijab for religious purposes and that she needed a religious accommodation due to a conflict with Abercrombie's clothing policy. In describing a strict notice requirement, the majority said:
[E]ven if an employer was generally aware of the beliefs and observances that are traditionally associated with a particular religious group, and also knew that the applicant or employee displayed symbols associated with that group—or even that the applicant or employee specifically claimed to be a member of that group—ordinarily, the employer would still not know whether the conflicting practice in question actually stemmed from religious beliefs unless the particular applicant or employee informed the employer, because under Title VII ... religion is a uniquely personal and individual matter. ...
[E]ven if an employer has particularized, actual knowledge of the religious nature of the practice—that is, knowledge that the practice of a particular applicant or employee stems from his or her religious beliefs—that still would not be sufficient information to trigger the employer’s duty to offer a reasonable accommodation. That is because the applicant or employee may not actually need an accommodation. In other words, an applicant or employee may not consider his or her religious practice to be inflexible; that is, he or she may not feel obliged by religion to adhere to the practice.
Judge Ebel dissented in part, concluding that the case should be remanded for a jury trial. [Thanks to Steven H. Sholk for the lead.]