What notice does an employer need? Samantha Elauf applied to be a model for the Abercrobie retail clothing company. She's a Muslim and she wore a black hijab to her interview. Abercrombie has a dress code that requires employees to wear clothes consistent with the kinds of clothing that Abercrombie sells in its stores, and that specifically excludes wearing black. After the interview, Abercrombie did not hire Elauf, and the EEOC brought suit.
Heather Cooke interviewed Elauf. Cooke assumed Elauf was a Muslim and "figured that was the religious reason why she wore her head scarf." However, during the course of the interview, Elauf never informed Cooke that she was Muslim, never brought up the subject of her headscarf, and never indicated that she wore the headscarf for religious reasons and that she felt obliged to do so, and thus would need an accommodation to address the conflict between her religious practice and Abercrombie’s clothing policy. Indeed, the topic of her headscarf never came up one way or the other.
The trial court granted partial summary judgment for the EEOC, and a jury awarded $20,000 in damages. The 10th Circuit reversed, ordering that summary judgment be entered in favor of Abercrombie. EEOC v. Abercrombie & Fitch Stores (10th Cir 10/01/2013). [Track it at SCOTUSblog.com.]
The 10th Circuit ruled that the employer had no duty to accommodate Elauf's religious practice. "Applicants or employees must initially inform employers of their religious practices that conflict with a work requirement and their need for a reasonable accommodation for them." Elauf did not do so.
The issue presented in the EEOC's cert petition:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 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.
- At first I was surprised the Court granted cert in this case, thinking it was relatively trivial and technical.
- However, I see a deep philosophical issue that should be important to all of us. It seems that the EEOC wants Abercrombie to assume Elauf was a Muslim, assume Elauf wore the hijab for religious (not personal or cultural) reasons, and assume there would be a conflict between Elauf's religious practice and Abercrombie's dress code. Put another way, the EEOC wants Abercrombie to adopt stereotypes and put those stereotypes into practice.
- The stereotypes: (1) Women who wear hijabs are Muslim. (2) Women who wear hijabs do so for religious reasons, not for cultural or personal reasons.
- We live in an era in which we are trying to stamp out stereotypes based on religion, sex, and race. Let's not have the courts enforce stereotypical thinking.