Well, Abercrombie and Fitch is coming to the Supreme Court. No, I don't mean the courthouse will blare bass-heavy music over the smell of whatever-that-smell-that-comes-pouring-out-of-Abercrombie-is while some almost-dressed model welcomes visitors. I mean, A&F will be there as a party.
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.