Is an Employer Liable Under Title VII of the Civil Rights Act Only If the Employer
Has Actual Knowledge of the Need for a Religious Accommodation
Based on Direct Notice from an Applicant or Employee?
CASE AT A GLANCE
The Equal Employment Opportunity Commission (EEOC) filed a complaint against Abercrombie & Fitch
Stores, Inc. (Abercrombie), alleging Abercrombie violated Title VII of the Civil Rights Act of 1964 when it
failed to hire Samantha Elauf, a Muslim who wears a hijab as a symbol of her faith. The United States
District Court for the Northern District of Oklahoma granted partial summary judgment to the EEOC
as to liability. After a jury trial limited to the question of damages, the jury granted $20,000 to Elauf in
compensatory damages. The Tenth Circuit Court of Appeals reversed the ruling of the district court and
granted summary judgment to Abercrombie, with Judge Ebel dissenting in part. The government filed a
successful petition for certiorari. There is a circuit split on the question between the Tenth Circuit and the
Seventh, Eighth, Ninth, and Eleventh Circuits.
ISSUE
Under Title VII of the Civil Rights Act of 1964, should an employer
be held liable for discrimination based on a religious observance
and practice if the employer fails to hire an applicant or terminates
an employee only if the applicant or employee provides direct
and explicit notice to the employer of the need for a religious
accommodation?
FACTS
This case arises out of Abercrombies employee dress code
requirements. Abercrombie utilizes what it terms a Look Policy,
obliging employees to dress in clothes consistent with Abercrombies
fashion forward image. Among other things, the Look Policy bans
caps and any black clothing. Employees may face disciplinary
action, including termination, as a consequence of violating the
Look Policy.
On June 25, 2008, Samantha Elauf, who was 17 at the time, applied
for a position as a sales associate at an Abercrombie Kids store in
Tulsa, Oklahoma. Elauf, who is Muslim, wore a black head scarf to
her interview the next day with assistant store manager Heather
Cooke. During her interview, Elauf did not discuss her belief that
she considers her hijab to be a symbol of her faith. Elauf was
unaware of the Look Policy. However, Elauf admitted she understood
Abercrombie banned black clothing.
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CASE ANALYSIS
The United States argues that the judgment of the Tenth Circuit
should be reversed because the plain language of Title VII
prohibits employers from hiring discrimination whenever the
employer declines to hire an applicant based on what the employer
correctly perceives to be an applicants religious practice, unless
accommodating the religious practice would pose an undue
hardship to the employer. The government argues Abercrombie
intentionally discriminated against Elauf when it correctly perceived
she wore a hijab as a part of her religious faith and refused to
hire her because of that religious expression. This intentional
discrimination goes to the core conduct Congress prohibited
under Title VII, asserts the government. The government also
argues that an employer acts with discriminatory intent when it
discriminates based on a protected attribute, even when acting
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After the Tenth Circuit issued its unfavorable decision, the EEOC
amended its Compliance Manual to require employers to provide
notice of workplace policies before applicants have a duty to request
accommodations. Abercrombie points to this modification as
evidence that the EEOC has reversed its own historical position on
the notice issue.
The government further argues that Title VIIs reasonable
accommodation requirements imposed a responsibility for
bilateral cooperation between employers and employees to reach
acceptable compromises between employers work requirements
and employees free exercise of faith. The government argues
Abercrombie preempted any dialogue by acting on its accurate
assumptions instead of initiating a dialogue with Elauf. The
government claims the Tenth Circuits ruling gives employers no
incentive to seek an interactive dialogue when they may simply
circumvent the law by claiming lack of actual knowledge based on
explicit notice from an employee who may or may not be aware
of a looming conflict. This lack of employer incentive may prove
particularly dangerous as to religious communities with distinctive
religious attire or other displays of faith.
Abercrombie argues the duty to initiate the interactive dialogue
rests with the employee, particularly where the conflict may be
definitely known only to the employee. Citing the regulation text
and EEOC guidance over the years, Abercrombie asserts any attempt
to place the burden on the employer is a reversal of long-standing
EEOC policy and should be rejected as unprecedented. Indeed, 29
C.F.R. 1605.2 imposes responsibility upon an employer after an
employee or prospective employee notifies the employer or labor
organization of his or her need for a religious accommodation,
(emphasis added).
The government disputes the appellate courts premise that job
applicants or employees have superior knowledge of any conflict
between employer rules and employee religious practices. The
government contends that while employees or applicants have
superior knowledge of their own religious practices, employers
have superior knowledge of their own workplace rules. In certain
situations, then, the employer will first identify religious conflicts
unbeknownst to applicants. The government asserts that is precisely
what happened here when Abercrombie identified a conflict
between its Look Policy and Elaufs religious practice. Abercrombie
then refused to hire Elauf because of that perceived conflict, instead
of initiating an interactive dialogue to seek a middle ground with
Elauf.
Abercrombie responds that employees are better suited to raise
a potential religious conflict. Abercrombie agrees that employees
will always have knowledge of their own religious practices,
and employers will always have knowledge of their workplace
policies. However, employees will sometimes know of possible
workplace policies, while Abercrombie argues employers will
never independently and definitively know of employees religious
practices, absent a direct statement from the employee. Thus,
in most cases, Abercrombie argues the employee has superior
knowledge. In this case, Abercrombie argues it was Elauf who had
superior knowledge: a friend told her of the Look Policy before her
interview, Cooke generally described the Look Policy during Elaufs
interview, and after the interview, a friend told Elauf she was not
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SIGNIFICANCE
The governments unusual request to remand unaddressed issues
back to the appellate court reflects that this case may not have been
an apt vehicle for summary judgment for either party, as Judge
Ebel wrote in dissent. Material facts as to who knew what when,
or perhaps rather who assumed what when, remain in doubt. Both
parties at some point before litigation commenced had reason to
doubt Elaufs ability to comply with the Look Policy and seek an
interactive dialogue. Neither did, taking their dispute straight to the
courthouse. Given Abercrombies accommodation of other requests
for modifications to its Look Policy, the lack of direct communication
in this case incentivized litigation when perhaps an accommodation
could have been reached.
AMICUS BRIEFS
In Support of Petitioner Equal Employment Opportunity
Commission
Brief for American-Arab Anti-Discrimination Committee and Other
Organizations Supporting Civil Rights for American Muslims (Abed
A. Ayoub, 202.244.2990)
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