By Gerald L. Maatman Jr. and Howard M. Wexler

As we have previously reported, the EEOC and Abercrombie & Fitch Stores have been entrenched in a nearly decade long battle over Abercrombie’s “Look Policy.” On September 23, 2013, the EEOC and Abercrombie entered into a comprehensive settlement of two separate religious discrimination lawsuits filed on behalf of Muslim teens who wear hijabs (religious headscarves) and who allegedly had adverse employment actions taken against them as a result. As part of this settlement, Abercrombie created an appeals process for denials of religious accommodation requests and agreed to inform applicants during interviews that accommodations to the “Look Policy” may be available and to incorporate headscarf scenarios into all manager training. 

Expressly excluded from this settlement was a third lawsuit brought by the EEOC against Abercrombie – EEOC v. Abercrombie & Fitch, Case No. 09-CV-00602 (N.D. Okla.) – concerning an applicant who was not hired because she wore a hijab. In July 2011, the U.S. District Court for the Northern District of Oklahoma granted summary judgment to the EEOC, finding that Abercrombie engaged in religious discrimination. In a comprehensive 95-page decision issued yesterday, the U.S. Court of Appeals for the Tenth Circuit not only overturned the grant of summary judgment to the EEOC, but also, in a complete 180 degree turn, held that Abercrombie is actually entitled to summary judgment.

The Decision

The EEOC’s lawsuit was based on Abercrombie’s decision not to offer employment to Samantha Elauf, a 17-year old female who applied for a Model position at an Abercrombie store in Tulsa, Oklahoma. Id. at 5. Ms. Elauf has worn a hijab on her head since she was thirteen and testified that she does so for religious reasons. Id. at 6. Although facts in the record indicated that they suspected as such, the two managerial employees who played a part in the decision to deny Ms. Elauf employment based on her wearing of a hijab had no particularized knowledge of the following information: that she was a Muslim, that she wore the hijab for religious reasons and felt obligated to do so; and would therefor need an accommodation to address the conflict between her religious practice and the “Look Policy.” Id. at 8.

It was this lack of knowledge concerning the reasons that Ms. Elauf wore the hijab that the Tenth Circuit held was fatal to the EEOC’s case. According to the Tenth Circuit, “A plaintiff must establish that he or she initially informed the employer that he or she adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice, due to a conflict between the practice and the employer’s neutral work rule.” Id. at 30. This is so because, “[a]n applicant or employee may engage in practices that are associated with a particular religion, but do so for cultural or other reasons that are not grounded in that religion. If so, an employer’s discrimination against that individual for engaging in that practice – though possibly reprehensible and worthy of condemnation – would not contravene Title VII’s religion-discrimination provisions. Id. at 21-22.

The Tenth Circuit expressly rejected the less restrictive approach advanced by the EEOC, namely, that in religious accommodation cases, “[t]he employer’s obligation is to attempt reasonable accommodation (where no undue hardship would result) when it has notice – be it from an affirmative statement by the individual, or some other source – of an individual’s religious belief that conflicts with a work requirement.” Id. at 31. The Tenth Circuit rejected this less restrictive approach because, “[a]n applicant or employee – should not be able to impose liability on an employer for failing to accommodate his or her religious practice on the ground that the employer should have guessed, surmised, or figured out from the surrounding circumstances, that the practice was based upon his or her religion and that the plaintiff needed an accommodation for it. Id. at 41. Here, since Abercrombie had no particularized, actual knowledge that Ms. Elauf’s wearing of a hijab stemmed from her religious beliefs and that she needed an accommodation based on this religious belief, the Tenth Circuit held that Abercrombie was entitled to summary judgment. Therefore, in announcing its standard it will apply to religious accommodation cases, the Tenth Circuit determined that:

In sum, we hold that, in order to establish the second element of their prima facie case under Title VII’s religion-accommodation theory, ordinarily plaintiffs must establish that they initially informed the employer that they engage in a particular practice for religious reasons and that they need an accommodation for the practice, due to a conflict between the practice and the employer’s work rules. As noted, we recognize that some courts have taken a different path on this questions. However, we are confident that our approach is the sounder one.

Id. at 45-46.

In reaching this decision, the Tenth Circuit addressed the inherent “catch 22” employers face in these situations, and explained that its ruling is consistent with the very guidance issued by the EEOC as to how employers should address religious accommodation issues at the workplace. The Tenth Circuit noted, that, “if under Title VII an employer is affirmatively discouraged from asking applicants or employees whether their seemingly conflicting practice is based on religious beliefs, and, if so, whether they actually will need an accommodation for the practice, because it is inflexible (i.e., truly conflicting), and the employer also is discouraged by the EEOC from speculating about such matters, then the interactive accommodation process ordinarily only can be triggered when applicants or employees first provide the requisite information to the employer.” Id. at 56-57.

Implications For Employers

The decision in EEOC v. Abercrombie & Fitch is welcome for all employers – especially those within the confines of the Tenth Circuit – who often feel that they are damned if they do and damned if they don’t when it comes to religious accommodation cases. On the one hand Title VII limits the ability of employers to inquire about an applicant/employee’s religious beliefs while at the same time employers must reasonably accommodate those very same religious beliefs. The Tenth Circuit’s holding puts on the onus on job applicants/employees to inform employers of their religious beliefs, and how based on such beliefs an accommodation is needed because the employers’ neutral policy conflicts with their ability to adhere to such beliefs. While employers still must be tread carefully when dealing with any accommodation request, whether based on a disability (under the ADA) or religious belief, the Tenth Circuit’s decision should go a long way in helping employers navigate these murky waters.

Readers can also find this post on our Workplace Class Action blog here.