Abercrombie & Fitch's Call Not to Hire Muslim Donning Headscarf Scrutinized by High Court

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By Jay-Anne Casuga

Feb. 25 — Job applicants must provide employers with direct, explicit notice about their religious practices or beliefs before an employer's duty to accommodate is triggered under Title VII of the 1964 Civil Rights Act, an attorney representing Abercrombie & Fitch Stores Inc. argued Feb. 25 before the U.S. Supreme Court.

Shay Dvoretzky of Jones Day, Washington, contended that the justices should uphold the U.S. Court of Appeals for the Tenth Circuit's ruling that Abercrombie isn't liable under Title VII for allegedly failing to accommodate Samantha Elauf, a Muslim applicant who wore a religious headscarf known as a hijab to a job interview, because Elauf never informed a hiring manager that she required an accommodation.

Abercrombie had a “look” policy for store employees that prohibited them from wearing hats or caps, and it said it didn't hire Elauf because she didn't comply with it.

Arguing on behalf of the Equal Employment Opportunity Commission, which had sued on Elauf's behalf, Deputy Solicitor General Ian Gershengorn countered that the Tenth Circuit's standard is too rigid and that Title VII's religious accommodation duty should be triggered where an employer has sufficient understanding that an applicant may need such accommodation.

Abercrombie's ‘Look' Policy

Under Abercrombie's “look” policy, store employees, also called “models,” are required to dress in clothing sold by the company and aren't permitted to wear black clothing or “caps.”

Justice Antonin Scalia observed that nothing in the law prevents employers from having such a policy and that its existence alone doesn't prove a Title VII violation.

Gershengorn agreed, but he said a Title VII violation would occur if an employer knows that an employee may need to be exempted from the policy as a religious accommodation and the employer fails to engage in an accommodation process.

Chief Justice John G. Roberts Jr. posed a hypothetical in which an employer has a policy prohibiting beards and an applicant wears a beard to a job interview. Would a hiring official be required to ask the applicant if he has the beard for religious reasons?

If so, such questioning could “cause more problems,” he said.

Gershengorn said an employer in that situation would have two options: make a hiring decision on the merits with the assumption that the applicant doesn't have a beard for religious reasons and will shave, or begin an accommodation dialogue.

What an employer can't do is not hire an individual it suspects may require a religious accommodation in order to avoid the accommodation duty, he said.

Require Employee to Request Accommodation?

Scalia said the court could avoid potential problems regarding employers questioning applicants about their religious beliefs by adopting the Tenth Circuit's rule and leaving it up to employees to request an exemption from a work policy.

But Justice Ruth Bader Ginsburg pointed out that if an applicant doesn't know about an employer's policy, how would he or she know to request an accommodation?

Gershengorn agreed and said it is inappropriate to place the burden on employees to request an accommodation when employers have superior knowledge about company policies. He added that Elauf in the present case didn't know about Abercrombie's “look” policy.

Justices Sonia Sotomayor and Samuel A. Alito Jr. suggested that perhaps employers should be upfront about their policies during the hiring process, and ask applicants in a religiously neutral manner about whether they have issues with those policies.

Gershengorn said “that's the exact dialogue” that should occur between employers and applicants.

“The point is to initiate the dialogue,” but that dialogue “never happened here,” he said.

Knowledge Should Be Traced to Applicant

Arguing on behalf of Abercrombie, Dvoretzky maintained that an employer's knowledge about the need for religious accommodation “has to be traced to the employee in some way” because of the “individualized and personal nature of religion.”

Alito posed a hypothetical to Dvoretzky in which a Sikh man wearing a turban, a Hasidic man wearing a hat, a Muslim woman wearing a hijab and a Catholic nun in a habit all apply for a position. He asked Dvoretzky if those applicants would have to explicitly tell the employer that they dressed that way for religious reasons.

Dvoretzky acknowledged that there are cases in which it would be more obvious that a “particular garb is worn for religious reasons,” but that there are also “far more ambiguous” situations in which a “particular outward symbol” may or may not be religious.

Alito asked Dvoretzky if he was willing to admit that there are at least some circumstances in which an employer can be charged with knowledge that an applicant is wearing something for a religious reason.

Dvoretzky replied that “there are some circumstances in which it is certainly more likely than others,” but emphasized that justices must craft a duty-to-accommodate rule that applies “across the board.”

Questions About ‘Level of Certainty.'

Justice Stephen G. Breyer observed that the government is arguing that if an employer “correctly infers, correctly understands … or correctly believes that a practice is religious and an accommodation is necessary,” then the employer must accommodate unless one of Title VII's exemptions apply.

“What's wrong with that?” he asked Dvoretzky.

Dvoretzky replied that such a rule would be “entirely unadministrable for courts, employers and applicants alike” because the EEOC hasn't explained what level of certainty an employer must have before the duty to accommodate is triggered.

Additionally, he said, applying some form of a “correct belief” standard would “inevitably lead employers to stereotype” based on religion.

“What we want to avoid is a rule that leads employers, in order to avoid liability, to start stereotyping about whether they think, guess or suspect that somebody is doing something for religious reasons,” Dvoretzky said.

But Ginsburg pointed out that the justices already stated that an employer could present applicants with their policies and ask them if they “have any problem with” them without probing into religion.

Justice Elena Kagan posed a hypothetical in which an employer doesn't want to hire Jewish people and an applicant named Mel Goldberg appears. Goldberg “looks kind of Jewish” but doesn't say he is Jewish, the justice said.

Although the employer doesn't have “absolute certainty” that Goldberg is Jewish, it nevertheless operates under the assumption that he's Jewish and elects not to hire him, Kagan said. She asked Dvoretzky if that would be a Title VII violation.

Dvoretzky answered that it would be a disparate treatment violation of Title VII because of the employer's intent to discriminate. But he said the present case involves Abercrombie's application of a religion-neutral dress code and Elauf's failure to request an accommodation.

Refusing to Accommodate Is Violation

Ginsburg pointed out that refusing to accommodate a religious practice is itself a violation of Title VII.

Dvoretzky agreed, but added that Abercrombie isn't arguing that religious practices don't have to be accommodated.

The question before the court is “what level of knowledge does the employer have to have before the duty to accommodate is triggered,” he said. “For 40 years, the EEOC's own guidance has put the burden to initiate the conversation on the employee because only the employee knows.”

Ginsburg again emphasized that an employee still must know a company's policy before he or she can request an accommodation.

In the present case, Dvoretzky said, Elauf was presented with a summary of Abercrombie's “look” policy and given an opportunity to ask questions.

Ginsburg asked if the policy summary mentioned headscarves. Dvoretzky replied that it didn't.

Alito asked if the “look” policy applied during the interview stage, and Dvoretzky answered that it didn't.

If the policy didn't apply at that stage, Alito said, there would be no reason to assume Elauf would have worn a headscarf every day.

“The reason that she was rejected was because you assumed she was going to do this every day and the only reason why she would do it every day is because she had a religious reason,” he said.

Dvoretzky maintained that the EEOC's theory of the case is that employers have a duty to accommodate a religious practice anytime an employer has a correct understanding or a suspicion of that practice, not whether Abercrombie acted based on impermissible assumptions about Elauf's religion.

Attorney: Abercrombie Would Have Taken Same Action

Dvoretzky added that an Abercrombie manager testified in the case that he would have taken the same action if an applicant wore a baseball cap or helmet to an interview, which shows that religion wasn't the basis for Elauf's nonselection.

But Roberts countered that the question isn't whether Abercrombie is treating everyone the same.

“You have an obligation to accommodate people with particular religious practices or beliefs, so to keep constantly saying, oh, we would have treated somebody with a baseball cap the same way doesn't seem … very responsive,” Roberts said.

Dvoretzky said similar treatment does matter for an intentional discrimination claim, which he argued the EEOC was pursuing.

“No, but as I understand it, it's intentional discrimination because you failed to accommodate,” Roberts said.

At a separate point during the argument, Ginsburg asked Gershengorn to address Abercrombie's contention that the government switched its theory of the case by abandoning a Title VII failure-to-accommodate claim in favor of a disparate treatment or intentional religious discrimination claim.

Gershengorn maintained that failure-to-accommodate has been the government's theory from the beginning.

A failure to accommodate is a type of disparate treatment that Title VII was designed to prevent, he said, though he acknowledged that the EEOC has viewed disparate treatment and accommodation claims as separate.

To contact the reporter on this story: Jay-Anne Casuga in Washington at jcasuga@bna.com.

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com.

A transcript of the argument is available at http://pub.bna.com/lw/1486us_argued.pdf.