Title VII of the Civil Rights Act of l964 requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship upon the employer. However, how is an employer supposed to know if the accommodation you are asking for is based on your religion? Obviously, it won’t always be clear in every instance that a requested accommodation is based on religion. On the other hand, sometimes common sense just tells us that something is based on religion. For example, if a Jewish employee wears a Yarmulke at work, very few people are going to question whether the employee is doing so for religious reasons. However, as a recent decision out of the Tenth Circuit Court of Appeals shows, employees still need to make sure they notify their employer of their need for a religious accommodation.
The decision in EEOC v. Abercrombie & Fitch Stores, Inc, a loss for the EEOC, makes clear that employers won’t always be bound by “common sense.” At issue was A&F’s dress code, the “Look Policy,” which happened to prohibit the wearing of head coverings and black clothing. However, the job applicant, Samantha Elauf, attended her job interview for A&F wearing a black hijab. During the interview, neither the interviewer nor Elauf discussed her religion or her wearing of the hijab. While the interviewer thought Elauf was qualified for the job and wanted to hire her, her boss, the district manager, refused to hire Elauf because she wore a black hijab to the interview, and because he believed such clothing articles to be inconsistent with A&F’s “Look Policy.”
The EEOC sued on Elauf’s behalf, alleging that A&F violated its duty of religious accommodation under Title VII. On cross-motions for summary judgment, the District Court entered judgment in favor of the EEOC; a jury later awarded $20,000 in compensatory damages.
However, on appeal, the Court of Appeals reversed the District Court’s grant of Summary Judgment for the EEOC, finding that because Elauf failed to present evidence that her religion was discussed, or that she otherwise had notified A&F that she wore the Hijab for religious reasons, A&F could not be held liable for discrimination or a failure to accommodate. The Court reasoned that it wasn’t enough that the interviewer might have assumed that Elauf was Muslim, and that she wore a hijab for religious reasons- she had to give the employer (A&F) actual notice for their duty to accommodate to arise.
I find the practical application of this to be a little absurd. Under the Tenth Circuit Court of Appeals’ decision, an applicant would be forced to verbally say, “hey, by the way, I’m wearing this hijab for religious reasons.” Under this decision, an employer could refuse to hire someone that looks like a Jew as long as there is no confirmation by express discussion of religion. Certainly, in race discrimination cases, the applicant does not need to verbally inform the employer , “hey, by the way, I’m African-American.”
Specifically, the Court focused on finding a way to make a break from the reasonable assumption that the hijab warn for religious reasons. It held: “As the EEOC’s expert, Dr. Esposito, testified, although some Muslim women wear hijabs for religious reasons, those are not the only reasons that Muslim women wear hijabs; for example, some do so for cultural
reasons or in order to demonstrate a personal rejection of certain aspects of Western-style dress.”
The evidence showed that the store manager. “Ms. Cooke ‘did not know’ Ms. Elauf’s religion, but she ‘assumed that she was Muslim,’ … and ‘figured that was the religious reason why she wore her head scarf.’” There was also a dispute in the evidence as to whether Cooke told her supervisor about the religious involvement: “Notwithstanding Ms. Cooke’s contrary deposition testimony, Mr. Johnson denied being told by Ms. Cooke that Ms. Elauf was a Muslim and that she wore her headscarf for religious reasons.”
Then A&F hatched a plan to prevent Elauf from getting the job:
Ms. Cooke testified that Mr. Johnson told her to change Ms. Elauf’s interview score on the appearance section from a two to a one, thereby bringing her overall score down to a five and ensuring that she would not be recommended for hire. With this understanding, Ms. Cooke threw away the original interview sheet and changed Ms. Elauf’s score, thus implementing Mr. Johnson’s alleged instructions. Ms. Cooke did not extend a job offer to Ms. Elauf. A few days after the interview, Ms. Elauf learned from Ms. Sepahvand that she had not been hired because of her headscarf.
If there is a question of fact regarding whether religion played a part in the decision, the matter should be left to a jury to decide. In my mind, if A&F thought they were acting legally within its rights – there would have been no need to secretly change the interview score and pretend not to hire her for non-religious reasons. I think that the jury clearly got this one right.
Nonetheless, on appeal, the Tenth District held:
Abercrombie is entitled to summary judgement (sic) because there is no genuine dispute of material fact regarding this key point: Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie’s clothing policy. Furthermore, it follows ineluctably from the logic and reasoning of our decision that, in granting partial summary judgment to the EEOC, the district court erred.
Luckily, this decision is not controlling in Ohio, but will still be pointed at by employer-side attorneys in the hopes of persuading our courts.
Nonetheless, the take away from this case is to always be vocal about your rights, even if it seems obvious. In the religion context, don’t assume your employer knows that you need certain accommodations because of religious reasons.
If you or someone you know has faced unlawful religious discrimination or has been denied a reasonable accommodation for their faith, take action! Call the Spitz Law Firm for immediate help. The best course of action you can take is to call the right attorney at 866-797-6040 to schedule a free and confidential consultation. At Spitz, The Employee’s Law Firm, you will meet with a religious discrimination attorney, who will be able to tell you what your legal rights are and the best way to protect them.
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