Best Ohio Religious Discrimination Attorney Reply: Do I have to do anything to get a religious accommodation on my job? Can I have a religious discrimination case if I never told my manager what my religion is? Do I have a claim for wrongful termination if I was fired today because I’m Muslim?
Pop quiz: Is this quote: “Let’s say four people show up for a job interview at Abercrombie. … So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the fourth is a Catholic nun in a habit.”
A. The start of a joke.
B. Something a US Supreme Court Justice would say.
C. A list of people that won’t likely get a job at Abercrombie & Fitch because they don’t fit their Look Policy.
The answer is, surprisingly B (and probably C!).
Supreme Court Justice Samuel Anthony Alito, Jr. made this comment during oral arguments on this past Wednesday, February 25, 2015 during oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc. Although our employment discrimination attorneys have blogged about this religious discrimination case before, let me reset the facts. Samantha Elauf, a Muslim teenager applied to work as a retail sales associate at Abercrombie in Oklahoma. As you may have heard, Abercrombie maintains a strict “Look Policy” for its sales associates, meaning that they want all of their sales force to look like they just stepped out of a catalog wearing its clothes. Under this strict “Look Policy,” Abercrombie’s employees are not allowed to wear headwear of certain colors. Elauf showed up at the interview wearing a hijab. The manager interviewing Elauf never asked about her religion, nor did she volunteer such information. But, then again, who walks into an interview and says “Hey, I just wanted you to know that I am …” Muslim, Jewish, Roman Cathlic, etc. But, after the interview a higher lever manager decided to reject Elauf because her black hijab violated Abercrombie’s “Look Policy.” Critically, the Abercrombie interviewed has admitted that she assumed the Elauf Muslim and that her hijab was a religious observance. Abercrombie’s defense? Because Elauf never expressly told them she was wearing her hijab for religious observance, it was not in a position to really truly and conclusive know that.
The United States District Court for the Northern District of Oklahoma rejected this argument and ruled in favor of the employee, but the Tenth Circuit Court of Appeals reversed, holding:
under the controlling law, the EEOC cannot establish this element because there is no genuine dispute of material fact that Ms. Elauf never informed Abercrombie before its hiring decision that her practice of wearing a hijab was based upon her religious beliefs and that she needed an accommodation for that practice, due to a conflict between it and Abercrombie’s clothing policy.
In reaching our conclusion that Abercrombie is entitled to summary judgment, we resolve a question vigorously contested by the parties: specifically, whether, in order to establish a prima facie case under Title VII’s religion accommodation theory, a plaintiff ordinarily must establish that he or she initially informed the employer that the plaintiff adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice, due to a conflict between the practice and the employer’s neutral work rule. We answer that question in the affirmative.
This set the stage for the U.S. Supreme Court to answer the question: is an applicant or employee required explicitly request a religious accommodation, or is notice requirement is satisfied when the employer has enough information that it should be aware of a potential conflict between its policies and an individual’s religious practices?
This brings us back to the U.S. Supreme Court arguments this Wednesday. And, if you liked Justice Alito’s set up to the joke, his punch line was even better for employees: “Now, do you think the employer has to that those people have to say, we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement.” And then, when Abercrombie’s attorney tried to evade the question, Justice Alito would have none of that: “Well, that can be the case, but I want to know the answer to the question whether the employee has to say, I’m wearing this for a religious reason, or whether you’re willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.”
After another attempted side step of the answer, Justice Stephen Breyer tagged teamed in and demanded an answer:
Actually, I didn’t think that was the question. I thought the question presented was that the Tenth Circuit had said, Employer, unless you know from the woman who is applying, from the applicant, unless you receive direct, explicit notice that what she wants to wear is based on religion and she wants an accommodation, unless you receive direct, explicit notice from her, you’re home free to do what you want. Now, in their question presented, they say, in the last few words in describing it, we think that’s wrong. Now, I agree that we have to say whether that’s wrong and, if it is wrong, it would be helpful to say what they have to do. So the SG says, here is what it is. If the employer correctly infers, correctly understands, and I would add “or correctly believes” that a practice is religious and an accommodation is necessary, that’s it. Then he has to accommodate unless he has one of the excuses under the statute, et cetera. Okay. What’s wrong with that?
This was followed by a back and forth with Justice Elena Kagan, which was absolutely great and on point:
JUSTICE KAGAN: Now, Mr. Dvoretzky, suppose an employer just doesn’t want to hire any Jews, and somebody walks in and his name is Mel Goldberg, and he looks kind of Jewish and the employer doesn’t know he’s Jewish. No absolute certainty and certainly Mr. Goldberg doesn’t say anything about being Jewish, but the employer just operates on an assumption that he’s Jewish, so no, he doesn’t get the job. Is that a violation?
MR. DVORETZKY: That is a disparate treatment violation of Title VII. But the employer JUSTICE KAGAN: That has got to be against the law, right? It doesn’t matter whether the employer
JUSTICE KAGAN: It doesn’t matter whether the employer knows it to an absolute certainty, right?
ASIDE — As great as this back and forth on religious discrimination was, this was not my favorite thing to come from Justice Kagan this week. In her dissenting opinion a case where a fisherman was charged under the Sarbanes-Oxley Act with the destruction of physical evidence for tossing the red groupers that he caught and were too small, Justice Kagan wrote: “A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).” Certainly, she could have busted out a question regarding whether the Cat wore the Hat for religious reasons.
I mean, come on, Justice Alito’s even busted “this mythical preppy” to describe A&F’s look policy. But, I digress…
So then Justice Ruth Bader Ginsburg, a.k.a. the Notorious RBG, who is the first Jewish woman (and only the second woman) appointed to the United States Supreme Court, jumped in with a yarmulke inquiry, and was backed up by Supreme Court Chief Justice John Roberts:
MR. DVORETZKY: …Johnson’s testimony, which the EEOC didn’t challenge, is that he would have taken the same action for somebody who came into an interview wearing a headscarf, a baseball cap, a helmet or another religious symbol.
JUSTICE GINSBURG: Or a yamulke [the court reporter can’t spell]. He said specifically, somebody come in, applies for a job, wears a yamulke, no questions asked, that violates our policy. That was his testimony.
MR. DVORETZKY: That’s right, and what that shows is that religion is not the basis for the action here, rather, Abercrombie at most was completely indifferent to —
CHIEF JUSTICE ROBERTS: No, but that doesn’t work in a case like this. It’s not a question, are you treating everybody the same. You have an obligation to accommodate people with particular religious practice or beliefs, so to keep constantly saying, oh, we would have treated somebody with a baseball cap the same way doesn’t seem to me is very responsive.
MR. DVORETZKY: Mr. Chief Justice, for purposes of an intentional discrimination claim, it does matter that you would treat everybody the same, and that’s the theory the EEOC is pursuing here.
CHIEF JUSTICE ROBERTS: No, no, no, but as I understand it, it’s intentional discrimination because you failed to accommodate.
MR. DVORETZKY: And I would submit that that is an incomprehensible understanding of what intentional discrimination means. Intentional discrimination
Now, personally, I would never tell a judge on the Cleveland, Ohio Municipal Court that anything he or she said was an “incomprehensible understanding.” So, telling it to probably the Chief Justice of the Supreme Court of the United States, well, that takes some serious cojones.
Not to be left out of this beat down, Justice Sonia Sotomayor jumped in with this line of pointed questions:
JUSTICE SOTOMAYOR: Well, isn’t that isn’t that what Ms. Cooke says she did? She said she saw her in a scarf and that she assumed that it was worn because of religious beliefs, so she acted on a stereotype that some, I guess, if you wear a black scarf, it’s because of a religious belief.
MR. DVORETZKY: Your Honor, I don’t believe that she acted on that stereotype. I believe that Johnson instructed her not to hire Ms. Elauf because she was not compliant with the Look Policy.
JUSTICE SOTOMAYOR: No, he hired her because didn’t hire her because, under the Look Policy, he believed you could not accommodate that religious belief.
If you think I have been one sided in presenting how this argument went in favor of employees, employers, I give you Justice Antonin Scalia who looks to be in favor of placing the burden on the employees: “You could avoid those hard questions, whether it’s understand, believe, suspect, by adopting the rule that the court of appeals adopted here; and that is, if you want to sue me for denying you a job for a religious reason, the burden is on you to say, I’m wearing the headscarf for a religious reason, or I’m wearing the beard for a religious reason. That that avoids all problems. Once you notify the employer that it’s for a religious reason, you got ‘em.” Booooooo…. That’s incomprehensible. (It is okay to say it, just not to his face).
Let’s end on a positive note and circle back to Judge Kagan who wisely and succinctly stated: “You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation…. But the alternative to that rule is a rule where Abercrombie just gets to say, “We’re going to stereotype people and prevent them from getting jobs. We’ll never have the awkward conversation because we’re just going to cut these people out.”
By the end, MR. Dvoretzky certainly understood a thing or two about awkward conversations
Given the above, I suspect that the Supremes are going to come down on the employees’ side, which hopefully will be a big win against religious discrimination. We will obviously keep you posted.
If you feel that you are being discriminated or harassed based on your religion or religious beliefs or that you were wrongfully terminated because of you are Jewish, Muslim, Mormon, Hindu or any other religion, 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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