Are You Available on Saturdays, and What’s Your Preferred Deity?

May 18, 2015

Title VII prohibits discrimination against applicants for employment on the basis of their religion. Accordingly, during the hiring process, an employer generally shouldn’t inquire into an applicant’s religious denomination or practices, including asking questions about the religious holidays she observes. Title VII also requires employers to reasonably accommodate employees’ and applicants’ religious practices and observances unless the accommodation causes undue hardship.

However, accommodation requires knowledge of an applicant’s religious practices, which runs headlong into the competing need to remove religion from the hiring decision. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., which was scheduled for oral arguments on February 25, 2015, the U.S. Supreme Court will confront that conflict, and its decision may dramatically reshape the way religion is addressed in the hiring process.


Abercrombie is a retail clothing company that operates stores across the United States. Employees in its stores are required to abide by a “look policy,” which places restrictions on their clothing, makeup, and accessories. The purpose of the look policy is to promote and showcase the Abercrombie brand. Relevant to the case before the Supreme Court, the look policy prohibits black clothing and “caps,” although it doesn’t give a specific meaning for what constitutes a “cap.” When Abercrombie managers interview applicants, they judge the applicant’s appearance and style in comparison to the look policy. Additionally, Abercrombie managers are instructed not to inquire into an applicant’s religious beliefs.

In mid-2008, Samantha Elauf, a 17-year-old Muslim, applied for a sales position at her local Abercrombie store. She wears a hijab (head scarf) in the exercise of her religion. At her interview with the Abercrombie store’s assistant manager, she wore a black hijab. The assistant manager would later admit that she assumed Elauf is Muslim and that she wears her hijab for religious reasons. However, Elauf never told the interviewer that she is Muslim, never indicated that she wears the hijab for religious reasons, and did not request a religious accommodation to address the conflict between her religious practice and Abercrombie’s policy. After the interview, Elauf was rated as a recommended hire under Abercrombie’s criteria. Nonetheless, the assistant manager sought out assistance from the district manager on whether her black hijab presented a problem. The district manager decided that Elauf wasn’t an acceptable candidate because she wears a clothing item that conflicts with the look policy. Consequently, she wasn’t offered a job. The EEOC learned of what happened and filed suit against Abercrombie, claiming that it violated Title VII by refusing to hire an applicant based on her religious practice without offering a reasonable accommodation. The district court agreed with the EEOC, concluding that Abercrombie was aware of Elauf’s need for a religious accommodation and nevertheless denied her employment without exploring the possibility of accommodation.

10th Circuit: Responsibility falls on applicant

The district court’s decision was appealed to the 10th Circuit. The court of appeals explained that the reasonable accommodation principle is implicated when there is a conflict between an employee’s religious practice and her employer’s neutral policy. The religious practice must be inflexible in the sense that the employee considers it required by her belief system. Thus, without an accommodation, the employee (or, in this case, job applicant) would be asked to choose between her religious convictions and her job. When such a situation arises and ultimately proceeds to litigation, the court applies a two-part analysis to determine if Title VII has been violated. First, the employee or job applicant must make a prima facie (minimal) showing that (1) she has a bona fide religious belief that conflicts with an employment requirement, (2) she informed the employer of the belief, and (3) she was fired or not hired for failing to comply with the conflicting employment requirement. If those three elements are established, the burden then shifts to the employer to (1) rebut one of the elements of the prima facie case, (2) show that it offered a reasonable accommodation, or (3) show that it was unable to reasonably accommodate the religious need without undue hardship.

The court of appeals’ decision included a lengthy and thorough discussion of the case law controlling the analysis discussed above. Ultimately, the court found that the second element of the prima facie case, whether the applicant informed the employer of her belief, was the deciding issue. The court declared that the employer has a burden to offer a reasonable accommodation only when it has been informed by an employee or applicant that “[she] engage[s] in a particular practice for religious reasons and that [she] need[s] an accommodation for the practice, due to a conflict between the practice and the employer’s work rules.”

Because Elauf never explicitly informed the assistant manager of her religiously motivated obligation to wear her hijab and stated that she would need an accommodation, Abercrombie was not required by Title VII to offer an accommodation. Citing the assistant manager’s admissions, the EEOC argued that an explicit statement of religious beliefs wasn’t required because Abercrombie was aware that Elauf wears her hijab for religious reasons. The court of appeals disagreed, finding that suspicions about an employee’s or applicant’s religious beliefs are not sufficient to create an obligation to accommodate, even when those suspicions are correct.

The court explained that actual knowledge isn’t enough because the applicant or employee must still inform the employer of the need for an accommodation. In other words, Abercrombie wasn’t required to offer to depart from the look policy until it knew that Elauf’s religious beliefs wouldn’t allow her to remove her hijab at work.

In deciding that the onus for initiating the discussion of religious beliefs and the need for an accommodation falls on the employee or applicant, the court explored the consequences of shifting the burden to the employer. One area of focus was the EEOC’s previous instruction to employers that they should not inquire into religious beliefs during the hiring process. By inquiring into an applicant’s religious beliefs in search of a conflict, the employer opens itself up to allegations that it made its hiring decision based on those religious beliefs. Another area of concern was the stereotyping that would inevitably take place if employers are asked to deduce their employees’ religious belief system and what accommodations would be necessary based on circumstantial evidence such as hairstyles and clothing.

In the end, the court was unwilling to interpret the religious accommodation requirement in a way that would thrust an individual’s religious beliefs into the spotlight during the hiring process. For that reason, the court of appeals reversed the district court’s judgment and ordered it to enter judgment in Abercrombie’s favor.

Case moves to the Supreme Court

The 10th Circuit’s decision was appealed to the U.S. Supreme Court, which elected to hear the case. The question before the Supreme Court is whether an employer can be liable under Title VII for refusing to hire an applicant or for discharging an employee based on a religious observance or practice only if the employer has actual knowledge that a religious accommodation is required and its actual knowledge resulted from direct, explicit notice from the applicant or employee.

Not surprisingly, the case has drawn the attention of employers across the country, both public and private, and advocates for religious liberty. Both parties, and their respective supporters, are able to offer compelling arguments in favor of their preferred standard. Employers reasonably fear that after years of being told to keep religion out of the hiring process, they will be required to actively search for conflicts between their policies and job applicants’ religious practices. No employer is excited at the prospect of adding “religious inquisitor” to its interviewers’ responsibilities.

On the other hand, as has been pointed out in arguments submitted to the Court, an applicant cannot be expected to know during the interview process which of her religious observances may conflict with the employer’s policies. Placing responsibility for discovering a conflict on the applicant strikes many as unreasonable given the imbalance in information. Moreover, should an employer that has knowledge of an applicant’s religious practice that conflicts with an existing policy be able to make a hiring decision based on the religious practice simply because that knowledge didn’t come directly from the applicant? Ultimately, these considerations are only a small fraction of the plethora of arguments on the interplay between business needs and religious beliefs that have been offered to the Court to sway its decision.

Bottom line

The Supreme Court may uphold the court of appeals’ decision that an applicant or employee must provide direct, explicit notice of her religious practice and the existence of a conflict to trigger the employer’s obligation to accommodate. By contrast, the Court may find that the employer must be an active participant in the process from the beginning. Alternatively, the Court may chart a middle path and find that responsibility for explicitly raising the conflict remains with the employee or applicant unless the employer acquires actual knowledge of a potential conflict, regardless of the source of the information. The actual knowledge standard may be attractive to the Court since it already applies to disabled employees and applicants under the Americans with Disabilities Act (ADA).

The Court’s decision may force employers to take an active role in ensuring that employees and applicants are provided with reasonable accommodations for their religious beliefs. As a result, previously taboo questions about religious beliefs and practices may become an essential component of the hiring process.

This article, slightly modified to note recent updates, was featured in the March 2015 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

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Jeremy Lange
Jeremy Lange