The Court granted certiorari yesterday in EEOC v. Abercrombie & Fitch Stores, Inc. Frankly, it's a little tough to figure out what in the heck the issue is in this case. What is clear, is that a Muslim wore a headscarf to an interview, the interviewer assumed she was Muslim and guessed that she wore the scarf for religious reasons, and A&F decided not to hire her.
The EEOC presented the question as:
[W]hether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a "religious observance and practice" only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.(emphasis added). The issue presented suggests that A&F had actual notice of the need for a religious accommodation - but not from the applicant herself. However, A&F's response indicates that it had no actual notice, and that the EEOC is mistaken. They frame the issue as:
Whether an applicant adequately informs a prospective employer of the need for a religious accommodation under Title VII simply by wearing an item of clothing which can be but is not always associated with a particular religion.A&F argues that the EEOC is trying to hold the employer liable based on its interviewer's assumption about the significance of the headscarf. The EEOC's Reply Brief reframes the issue as:
By holding that an employer may discriminate against a job applicant or employee based on practices that the employer correctly believes to be religious, so long as the employer does not have “actual know ledge” of the need for a religious accommodation based on the explicit statements of the applicant or employee, the Tenth Circuit . . . opened a safe harbor for religious discrimination.So, what do I take away from all of this? The Supreme Court will hopefully decide to what extent an employer must have notice of the need for a religious accommodation to impose liability for failing to hire an employee who requires such an accommodation. I seriously doubt the Court will impose a requirement that the employer have actual notice from the applicant. I suspect the case will turn on whether Title VII requires actual notice, or if the employer's correct assumption that the applicant requires a religious accommodation is sufficient to trigger some obligation (like, the interactive process perhaps). My money is on an actual notice requirement - but we'll see.