Abercrombie & Fitch is the subject of a religious discrimination lawsuit, after refusing to hire a young Muslim woman who wore a hijab – a religious headscarf – to her interview. In 2008, 17-year-old Samantha Elauf applied for a sales job with the famous retailer at one of its locations in Tulsa, Oklahoma. The store manager thought that Elauf was a good candidate for the position, but wasn’t sure if she could work for the store wearing the hijab. The store manager asked the district manager if a Muslim applicant could wear a hijab at work. The district manager replied that the store could not make any exceptions to its strict “look policy,” which did not permit headwear of any kind. Abercrombie did not discuss the policy with Elauf before rejecting her. The case has made its way up to the United States Supreme Court, which is scheduled to hear oral arguments this Wednesday.
Under Title VII of the Civil Rights Act, it’s clear that employers must provide reasonable accommodations to employees based on their religious beliefs, unless it would create an undue hardship (for more information, see our article on religious accommodation in the workplace). In general, the employee must notify the employer of a need for accommodation before the employer is required to act. But what if the employer knows of the need for accommodation, but the information wasn’t explicitly provided by the employee?
That’s the question that is at the center of this dispute. According to Abercrombie, under Title VII of the Civil Rights Act, the burden is on the applicant to request an accommodation for his or her religious beliefs. Employers are not expected to be mind-readers, and what’s more, employers are not allowed to ask employees about their religious beliefs in interviews.
However, according to EEOC, Abercrombie store managers knew that Elauf wore the hijab for religious reasons, which imposed a duty on Abercrombie to start a discussion about reasonable accommodation. At the very least, Abercrombie should have informed Elauf of the dress code. After all, how would Elauf know to request an accommodation if she was unaware that headwear was prohibited by company policy?
The Supreme Court’s decision could provide some much needed clarification on just how far employees must go to request religious accommodations. The Court is scheduled to issue a decision in late spring or early summer.