Justices Hear Case on Religious Accommodation

Does a job applicant have to directly ask the employer for a reasonable accommodation of his or her religion, or does the employer have to take the lead from the circumstances at hand and inquire of the applicant whether he or she needs an accommodation?

Those were the questions that were debated before the U.S. Supreme Court today in a Title VII lawsuit brought by the Equal Employment Opportunity Commission against retailer Abercrombie & Fitch.

In this case, the EEOC filed suit against the retailer on behalf of Samantha Elauf, then 17, who applied for a job at the retailer in Tulsa, Oklahoma in 2008, but was rejected because she wore a headscarf, violating the company’s “look policy,” which outlines how store staff should be groomed and dressed.

A federal judge initially found Abercrombie & Fitch liable for discrimination, but the 10th U.S. Circuit Court of Appeals in Colorado reversed, ruling that the 1964 Civil Rights Act only protects employees who provide “explicit notice of the need for a religious accommodation.”

The appeals court said that the EEOC had failed to establish that there was any dispute over the fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing her hijab stemmed from her religious beliefs and that she needed an accommodation for this (inflexible) practice.

The EEOC has taken aim at the retailer’s policy over the years, filing several lawsuits.

The tenor of much of today’s questions from the justices put the company on the defensive. The company argues that it doesn’t want to have to be in the position of initiating a conversation with an applicant that raises issues of religious observance. But Justice Samuel Alito, who is usually sympathetic to business, suggested the company could avoid this by handing the applicant a copy of its dress and grooming rules, then asking whether the applicant had a problem with them. That way it would shift to the applicant the issue of introducing religion into the conversation.

A ruling on the issue is expected by the end of the court’s term in June.

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