Samantha Elauf applied for a position at the Abercrombie Kids store in Woodland Hills Mall. Samantha wore a hijab to the interview. During the interview, the manager informed Samantha of Abercrombie’s “Look Policy” requiring employees to dress and look a certain way (this has been litigated several times, covered in the May ELR). Samantha never mentioned her hijab, never mentioned her religion, and did not ask any questions about the store policy regarding head coverings. Supposedly, because the headscarf was not allowed under the “Look Policy,” Samantha was not hired.

The EEOC brought suit against Abercrombie & Fitch for failure to provide religious accommodations under Title VII. The district court granted summary judgment for the EEOC, and Abercrombie appealed. On appeal, the Tenth Circuit focused on the undisputed fact that the candidate for employment never informed Abercrombie that she felt obligated to wear a headscarf for religious reasons. Her religion was not even mentioned during the interview. Due to Abercrombie’s lack of actual knowledge of a need for religious accommodation, the Tenth Circuit reversed and granted summary judgment for Abercrombie. We wrote about that Tenth Circuit holding in the November ELR. Under the Tenth Court’s holding, in order for an employer to be held liable for failure to accommodate religious practices under Title VII, the employee desiring an accommodation must provide actual notice to the employer of the need for religious accommodation.

After the Tenth Circuit ruled in favor of Abercrombie, the EEOC issued new official guidance and announced, “[i]n some instances, even absent a request [by the employee], it will be obvious that the practice is religious and conflicts with a work policy, and therefore that accommodation is needed.” Religious Garb and Grooming in the Workplace: Rights and Responsibilities, §7. The new guidelines follow the EEOC’s argument that an employer may have a duty to accommodate religion absent actual knowledge.

The type of notice necessary to trigger a duty to accommodate is at issue. Due to the varying interpretation of the notice requirement, this case has been appealed to the Supreme Court. The EEOC argues that Title VII does not require “direct explicit notice from the applicant” but instead only requires that the employer have knowledge of enough facts to understand that an accommodation is needed. In other words, “constructive knowledge” – a knew-or-should-have-known standard. Accordingly, a conflict exists between the Tenth Circuit ruling and the EEOC’s guidance.

At the next stage, it is likely that the EEOC will argue that, by wearing the hijab to the interview, Samantha implicitly notified the employer of her religious beliefs and Abercrombie should have considered an accommodation. The Supreme Court will likely consider whether the act of wearing a hijab was sufficient notification. In our next article, we may finally be able to give you a definitive answer. Does an employer need to provide a reasonable accommodation only if it had actual knowledge, or if it knew or should have known a religious practice was in conflict with a work policy?

By Sierra G. Salton, ssalton@dsda.com