Supreme Court Will Decide Head Scarf Case

The United States Supreme Court has agreed to decide whether Abercrombrie & Fitch’s refusal to hire a Muslim job applicant who wore a religious head scarf to a job interview violated Title VII.  EEOC v. Abercrombie & Fitch Stores, Inc., U.S., No. 14-86, 10/2/14.

The case arose after a 17 year old applicant wore a hijab – a religious head scarf – to an interview for a position in Abercrombie’s Tulsa, Oklahoma store. During the interview, the applicant did not identify herself as Muslim, nor did she state that she was required to wear the head scarf for religious reasons. However, the interviewer rated the applicant as a one out of three in the category of “appearance and sense of style.”  Under Abercrombie’s “look” policy, sales people were required to dress in the kind of clothing the store sold and were prohibited from wearing black clothing or caps.  Abercrombie did not hire the applicant, and she sued for religious discrimination.

The  EEOC won the case on summary judgment in the District Court, but the 10th Circuit reversed and granted summary judgment to Abercrombie. Now, the Supreme Court will decide whether an employer violates Title VII where, as here, the applicant never requested any accommodation for her religious practices.  Abercrombie argued, and the 10th Circuit agreed, that an employer should not be liable under Title VII for failing to accommodate religious practices unless the employer had actual knowledge from the worker that a religion-work conflict existed.

The case raises fascinating issues for lawyers and human resources professionals.  Here, the applicant never raised her religion, nor did she ask for any accommodations. By arguing that Abercrombie was expected to know the head scarf was going to be a problem under its policy, the EEOC was essentially asking Abercrombie to rely on stereotypes as to what a person’s dress meant about their religion.  Isn’t that exactly the kind of thing the EEOC expects employers not to do?


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