In a case being watched by school districts, the U.S. Supreme Court on Wednesday took up a case about when employers may be liable under federal anti-discrimination law for not hiring an applicant based on the need to accommodate a religious practice or observance.
The case involves a young Muslim woman who sought a job at an outlet of the trendy retailer Abercrombie & Fitch, but was worried about whether she could continue to wear a head scarf she donned for religious reasons.
The chain’s employees gave her mixed signals before concluding that a head scarf would violate its “Look Policy” for store employees, which prohibited hats or headdress of any kind. The company says the woman, Samantha Elauf, never specifically asked for a religious accomodation.
That is the key question before the high court in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc. (Case No. 14-86): whether an employer faces liability under Title VII of the Civil Rights Act of 1964, which Congress has clarified to require employers to reasonably accommodate religious practices, only if the employer knew that a religious accommodation was required and the notice came directly from the applicant or worker.
The issue is of interest to all employers, including those in the public sector. The National School Boards Association joined with other state and local government groups in a friend-of-the-court brief on Abercrombie’s side.
“Because state and local governments are collectively the nation’s largest employer, have the greatest variety of staffing requirements, grooming and dress policies, and must rigorously operate within the confines of the First Amendment, the sheer volume of situations involving issues of religious accommodation affects them more than any other employer,” the groups’ brief says.
Also, though the government groups did not cite the case, the Supreme Court in 1986 was confronted with a religious-accommodation case from a school district. A Connecticut high school teacher said his membership in the Worldwide Church of God required that he not work on six designated holy days. The local teachers’ union’s collective-bargaining agreement with the Ansonia, Conn., school district allowed only three days off for religious observances.
The teacher sought to use sick leave or various other ways to get all six days off, and when the district wouldn’t budge, he sued. In its decision in Ansonia Board of Education v. Philbrook, the Supreme Court held that that an employer has met Titlle VII when it offers a reasonable accommodation to the employee. The employer does not have to show that the employee’s preferred alternative would cause an undue hardship.
“What the court said in Ansonia is that a bilateral dialogue is what Title VII is designed to accomplish,” Deputy U.S. Solicitor General Ian H. Gershengorn told the justices during oral arguments on Wednesday.
Gershengorn was representing the EEOC, which sued on Elauf’s behalf, alleging that Abercrombie violated Title VII by refusing to hire her because she wore a “hijab,” or head scarf, and refusing to make an exception to its “look policy.”
The high court spent an unusual amount of time focusing on the facts of the case. Elauf had just graduated from high school in 2008 when she sought a job at an Abercrombie kids’ store (known as abercrombie) at a Tulsa mall.
Elauf asked a friend who worked at the store whether her black head scarf would be a problem. The friend consulted an assistant manager, who said she didn’t think it would be a problem as long as she wore a color other than black, since Abercrombie didn’t sell black clothing and barred its store employees (which it refers to as “models”) from wearing black.
Elauf interviewed for the job and received generally high marks, but the store manager, who presumed Elauf was Muslim and wore the scarf for religious reasons, consulted a district manager. The district manager said the head scarf would violate the chain’s look policy, and thus Elauf could not be hired.
A federal district court granted summary judgment to the EEOC (on Elauf’s behalf), and after a trial over damages, a jury awarded Elauf $20,000.
The U.S. Court of Appeals for the 10th Circuit, in Denver, reversed and ordered summary judgment for Abercrombie. The court concluded that Title VII does not bar an employer from taking action against an applicant or employee based on a religious practice unless the employer received explicit, verbal notice of the religious conflict.
During the arguments, Gershengorn said that what Title VII requires is not for the employee to have to bring up the religious issue, but the “bilateral” or “back and forth” dialogue initiated by the employer.
This prompted a concern by Chief Justice John G. Roberts Jr. that such an employer-initiated dialogue may promote religious stereotypes.
“Let’s say you have someone of Middle Eastern appearance who shows up for the interview with a beard,” the chief justice said. “And the employer, like Abercrombie & Fitch, they don’t like beards. They don’t want their models, as they call them, having beards. But [hiring manager] doesn’t know if the beard is there for a religion reason or not. So you think it’s better to him to sit there and start asking this applicant questions he would not ask anyone else about religion? ‘Why are you wearing a beard? Is there some religious reason for that?’ It seems that your solution causes more problems.”
Shay Dvoretzky, a Washington lawyer representing Abercrombie, picked up on that when it was his turn.
“There is no way that the employer can know about a religious practice unless ... that information is traceable to the employee,” he said. “And having that kind of a ‘correct belief’ standard will inevitably lead employers to stereotype.”
The EEOC and Elauf seemed to have the support of a majority of justices, including Justice Samuel A. Alito Jr., who posed a question to Dvoretzky that he said “is going to sound like a joke, but ... it’s not.”
“Let’s say four people show up for a job interview at Abercrombie,” Alito said. “So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the fourth is a Catholic nun in a habit. Now, do you think ... that those people have to say, ‘We just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement.’?”
Dvoretsky said that “one can certainly imagine cases in which it is more obvious than others that a particular garb is likely worn for religious purposes.”
For schools, religious accommodation cases have tended to come up not only with employees who seek days off, but also who seek to wear religious items or keep religious objects in their classrooms. Such cases have often raised other legal concerns, such as worries by school districts that such items might be perceived by students as a government establishment of religion.
Outside the employment context, similar issues have come up involving students. A brief filed by the state of Arizona and eight other states, on the EEOC’s side, cites a case in which a federal court enjoined a school district from requiring a Native American boy to wear his long hair in a bun on top of his head because it offended a sincerely held religious belief of his.
And a brief filed on the EEOC’s side by the Council on American-Islamic Relations cites instances in which Muslim girls who have worn hijab in U.S. schools have faced hostilities. The group says there is “a significant Muslim youth population entering the American workforce for the first time that does not understand the possibility of a religious accommodation conflict when applying for jobs.”
A decision in the case is expected by late June.
A version of this news article first appeared in The School Law Blog.