Abercrombie Case Addresses Accommodation of Religious Garb

The U.S. Supreme Court recently heard oral argument in a case that could change existing standards on reasonable religious accommodation in the workplace (EEOC v. Abercrombie & Fitch, U.S., No. 14-86, oral argument 2/25/15). 

Caryn Freeman, a reporter with Bloomberg BNA’s Human Resources Report, sat down with an attorney to discuss the case. You can see a video of that interview below:

The case arose when a 17-year-old Muslim applicant was rejected for a job with Abercrombie & Fitch following an interview where she wore a hijab. The Equal Employment Opportunity Commission subsequently pursued charges against the clothing retailer, claiming that the failure to provide the prospective employee an accommodation amounted to religious discrimination under Title VII of the Civil Rights Act of 1964.

In its defense, Abercrombie said it was completely indifferent to the hijab as an expression of religion, focusing instead on the headscarf as a violation of its dress code or “Look Policy.” 

Legal Perspective

Caryn explored the potential ramifications of the case with Rae T. Vann, a partner with Norris, Tysse, Lampley & Lakis LLP, who offered some thoughts on how employers might deal with such situations.

Ms. Vann said that “as a best practice, most responsible employers would take a step back, have a conversation amongst themselves, look around the workplace to see whether and to what extent these issues have been raised in the past” and see what could be done with respect to an otherwise desirable job candidate before disqualifying the applicant because of a head covering.

Regarding the issue of a religious accommodation in this particular case, meanwhile, she said Abercrombie never reached the point where it was aware of a sincerely held belief surrounding the applicant’s wearing of the headscarf. 

“The employer argued in the court that it simply was enforcing a religion-neutral policy that precluded anyone in that position from wearing anything on their head,” she said.

According to the EEOC, employers aren’t supposed to ask about religion during an interview, Ms. Vann pointed out. And if they do make such inquiries, that can raise an inference of religious bias by indicating that they took religion into account in refusing to hire a job applicant.

Requiring employers to raise the issue of religious accommodation in situations where the subject hasn’t first been broached by an applicant would create a “Hobson’s choice” for employers, she said. 

“Either the employer asks the question outright, based on a perception of a particular religious belief, or it doesn’t ask the question, waits for the applicant to raise a religious accommodation issue, and then gets sued on the back end—as Abercrombie did here—for failing to address the conflict between a work rule and a sincerely held religious belief.”

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