By Dawn Reddy Solowey  and Lynn Kappelman

On October 2, 2014, the U.S. Supreme Court agreed to weigh in on the long-running litigation between EEOC and Abercrombie & Fitch over the retailer’s decision not to hire a Muslim teenager who interviewed for a position in a headscarf that violated its “Look” policy.

The Court’s much-anticipated decision may clarify when an employer is on notice that an applicant or employee may need a religious accommodation from a workplace policy under Title VII.

The Facts

Samantha Elauf, who self-identifies as Muslim, applied for a “model” (salesperson) position in an Abercrombie store.  She alleges that she had long worn a hijab—a traditional Muslim headscarf—for religious reasons.  The hijab conflicted with Abercrombie’s “Look Policy,” which required salespeople to wear “classic East Coast collegiate style of clothing” and forbade head-coverings.

At the job interview, Ms. Elauf wore the headscarf, but did not say anything about it or her religion, or request any accommodation.  Her interviewer testified that she assumed that Ms. Elauf was Muslim and wore the head-covering for religious reasons. Evidence suggested that the headscarf influenced Ms. Elauf’s interview scores, and the decision not to hire her.

The Lower Court Rulings

The district court granted summary judgment to the EEOC on its claim for failure to accommodate Ms. Elauf’s religion.  In 2013, the Tenth Circuit reversed (see our previous post), and granted Abercrombie summary judgment.

The Tenth Circuit held that the burden is squarely on the applicant or employee to advise the employer that her religious practice conflicts with a job requirement. Since it was undisputed that Ms. Elauf had not notified Abercrombie that her religion required that she wear a head scarf and that she would need a religious accommodation for this observance, the EEOC’s religious accommodation claim failed as a matter of law.

The Court reasoned that the burden of notice belongs with the applicant or employee, because religion is an inherently personal and individual matter. The applicant or employee is uniquely qualified to know whether a practice is religiously motivated and an accommodation is necessary. Moreover, Abercrombie had no actual knowledge of the conflict.

The Court rejected the EEOC’s argument that “something less than an employer’s particularized, actual knowledge would suffice.”  The Court explained that the employer should not be held liable for failure to have “guessed, surmised, or figured out from the surrounding circumstances” that the practice was religiously-based and required accommodation. The Court pointedly noted that the EEOC itself cautions employers against asking about religion in the hiring process, or making assumptions about religious practices based on stereotypes.

What Can We Expect from the Supreme Court?

The Court is poised to decide what is legally sufficient to put an employer on notice that a religious practice may conflict with a job requirement, and therefore trigger the employer’s duty to engage in an interactive process to explore accommodations.

The Court could decide to affirm the Tenth Circuit’s ruling that the duty to inform the employer rests with the employee.  Or the Court could hold that at least actual notice of the conflict (from any source) is required before an employer can be liable for failure to accommodate.  Or the Court could agree with the EEOC that even something less than actual notice will suffice.

The Court may look to disability law regarding when an employer is on notice that an accommodation is required.  In opposing the cert. petition, Abercrombie argued that a requirement that the employee request a religious accommodation would be consistent with authority in the ADA context that an employer’s obligation to accommodate does not arise until the employee makes an adequate request.  But at least some courts have held that an employer may not bury its head in the sand when it is clear that an employee requires an accommodation for his disability to perform her job, and have required employers to engage in the interactive process with employees in that situation.  If the Court reasons that the same holds true with religious accommodations, it could hold that Abercrombie was on notice that they needed to engage in the interactive process with Ms. Elauf.

What Does The Case Mean for Employers?

As we have reported before, the EEOC has doubled down on its view that something less than actual notice is required, including in its 2014 guidance on religious attire and grooming.  But  this position leaves the employer in a quandary, as the employer could be penalized for failing to act on mere assumptions regarding an applicant or employee’s religious practice, even as it is advised to avoid asking about religion or engaging in religious stereotyping.

If the simple act of an employee wearing something that can be (but is not necessarily) associated with a particular religion is enough to put the employer on notice, then many forms of attire could arguably trigger notice, from a yarmulke, to a cross necklace, to a tattoo.  And the implications may go beyond mere attire.  For example, should the employer assume from religious attire, like a Star of David necklace, that the applicant may need a certain day off to observe the Sabbath?

Clarification from the Court will provide employers welcome guidance.  Until then, employers should generally continue to avoid asking applicants about religion, or making assumptions based on stereotypes.  At the same time, an employer who has reason to believe that accommodation may be necessary—even if applicant has not asked—should seek guidance from counsel. Employers should also make sure to follow state or local religious discrimination laws, which can vary from federal.

For additional information on religious accommodations, please contact Ms. Solowey or Ms. Kappelman in Seyfarth Shaw LLP’s Boston office, or your Seyfarth attorney.