The case arose from Abercrombie’s “Look Policy,” which establishes appearance guidelines for employees. The Look Policy requires employees to wear clothing exemplifying the brand’s “casual,” “preppy” style and prohibits the wearing of “caps” — a term left undefined in the policy.

Samantha Elauf applied and interviewed for a position as a store associate.  She wore a hijab to her interview, but did not mention her religion or ask whether wearing a hijab would conflict with the Look Policy.  The interviewer suspected that Elauf wore the scarf for religious purposes, but did not ask. Rather, she sought guidance from her supervisor, who advised that the Look Policy prohibited all headgear.  For this reason, Abercrombie rejected Elauf’s application.

The Equal Employment Opportunity Commission (“EEOC”) filed suit against Abercrombie on Ms. Elauf’s behalf alleging religious discrimination in violation of Title VII.  The EEOC claimed store managers declined to hire Ms. Elauf because they believed her hijab violated the Look Policy’s headgear ban.  The retailer responded that it did not know that Ms. Elauf was Muslim, or that she wore a hijab as part of her religious practice.  Before reaching the Supreme Court, Abercrombie successfully argued to a lower court that Ms. Elauf’s religious accommodation claim required a showing that the employer have actual knowledge of the applicant’s need for accommodation of a religious practice.

The Supreme Court rejected the retailer’s argument, finding that an employer will be liable if a desire to avoid accommodating a religious practice is a “motivating factor” in the employer’s adverse employment decision. In rendering its decision, the Court distinguished Title VII, which does not expressly include a knowledge requirement in its statutory language, from other discrimination statutes, such as the Americans With Disabilities Act, that do.

The Court noted that “it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice.” It declined, however, to address the issue because Abercrombie had suspected that Elauf wore the scarf for religious purposes and therefore neither side had addressed the question.

To avoid similar claims, employers should train interviewers to be alert to potential religious accommodation issues, and to refer them to Human Resources or other responsible personnel for resolution. In its application procedures employers should, as they do for ADA compliance, include disclosure of job requirements, including any applicable appearance standards and ask applicants whether they need any accommodation to comply.  The employer can then consider – and if necessary discuss with the applicant — whether and how, it can reasonably accommodate the applicant’s religious practice.

The Court already has heard argument in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, which concerns whether the Portal-to-Portal Act, which amends the Fair Labor Standards Act, requires employers to pay warehouse employees for the time they spend, which in this case runs up to 25 minutes, going through post-shift anti-theft screening. Integrity is a contractor to Amazon.com, and the 9th Circuit had ruled in against it, holding that the activity was part of the shift and not non-compensable postliminary activity. Interestingly, DOL is on the side of the employer, fearing a flood of FLSA cases generated from any activity in which employees are on the employers’ premises.  This case will affect many of our clients and should be monitored carefully.

On December 3rd, the Court will hear argument in Young v. United Parcel Service, Inc., No. 12-1226, which poses whether the Pregnancy Discrimination Act requires an employer to accommodate a pregnant woman with work restrictions related to pregnancy in the same manner as it accommodates a non-pregnant employee with the same restrictions, but not related to pregnancy. The 4th Circuit had ruled in favor of the company, which offered a “light duty program” held to be pregnancy blind to persons who have a disability cognizable under the ADA, who are injured on the job or are temporarily ineligible for DOT certification. Ms. Young objects to being considered in the same category as workers who are injured off the job. This case, too, will create a precedent of interest to at least some of our clients. Of  note, this week United Parcel Service sent a memo to employees announcing a change in policy for pregnant workers advising that starting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well. In its brief UPS states “While UPS’s denial of [Young’s] accommodation request was lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments.”  The change in policy, UPS states, is the result of new pregnancy accommodation guidelines issued by the Equal Employment Opportunity Commission, and a growing number of states passing laws mandating reasonable accommodation of pregnant workers.

On October 2nd, the Supreme Court granted cert. in a Title VII religious accommodation case, EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86. The case concerns whether an employer is entitled to specific notice, in this case  of a religious practice – the wearing of a head scarf —  from a prospective employee before having the obligation to accommodate her.  In this case, the employer did not hire a Muslim applicant. The Tenth Circuit ruled that the employer was entitled to rely upon its “look” policy and would not presume religious bias where the employee did not raise the underlying issue. Retail clients and others will be affected by the outcome.

More will follow as developments warrant.

The EEOC has just published guidance to employers on accommodating religious dress and grooming practices pursuant to Title VII of the Civil Rights Act. This guidance comes on the heels of several high profile religious discrimination cases that have brought the issue of religious dress and grooming accommodation to the forefront.  Employers with 15 or more employees are covered by Title VII and should take note of the new guidance.

Title VII requires employers to provide reasonable accommodations for “sincerely held religious practices, unless the accommodation would cause an undue hardship” and prohibits workplace or job segregation based on religion, harassment based on religion or retaliation for requesting a religious accommodation.  Certain states, including California, have adopted similar protections for religious practices in their non-discrimination statutes, expressly requiring the accommodation of religious dress and religious grooming absent undue hardship.  Taken together, these laws require employers to make exceptions to “their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices.”  This means, among other things, allowing for some flexibility to dress codes or uniform policies.

The EEOC provides the following examples of religious dress and grooming practices: “wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”  While this list is helpful, employers should be cautioned that it is not exhaustive.

Rather, the guidance makes clear that the EEOC takes a jarringly broad view of what constitutes a religious practice or belief that may require accommodation.  For example, the guidance notes that Title VII “defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.”  The guidance further states, “an employee’s belief or practice can be ‘religious’ under Title VII even if it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization.” Because the EEOC takes such a broad view, employers may find it difficult to refute that a practice or belief is “religious.”  Nevertheless, the guidance provides that “if a dress or grooming practice is a personal preference, for example, where it is worn for fashion rather than for religious reasons, it does not come under Title VII’s religion protections.”  Employers should obviously approach such matters cautiously and engage legal counsel for assistance on anything that may be a “close call.”

The guidance reiterates that the Title VII accommodation requirement only applies to sincerely held religious beliefs.  However, it may be challenging for an employer to decide whether a belief is sincerely held.  This is particularly true because the guidance makes clear that “an individual’s religious beliefs – or degree of adherence – may change over time, yet may nevertheless be sincerely held.”  Indeed, many of the recent cases of religious discrimination relate to a requested accommodation of a newly observed religious belief, such as a request by a Muslim employee to begin wearing a headscarf.  Likewise, a change in company policy may lead to new requests for accommodations.  For example, just last week, the U.S. Department of Justice sued the School District of Philadelphia for failing to accommodate a Muslim police officer who sought a variance from a new grooming policy that required a trimmed beard, which the officer claimed was forbidden by his religion. If there is a legitimate reason to question the sincerity of the belief or practice, the employer may ask for “information reasonably needed to evaluate the request.”

For example, in response to an employee’s request to wear a hijab, the employer may require that the hijab match the colors of a company uniform.  Unless there is a legitimate religious basis for a variance from the uniform colors, it will be difficult for an employee to demonstrate that it was not a reasonable accommodation of her religious beliefs to approve the wearing of a hijab in a certain color.  Employers should be cautioned, however, that requiring a certain color of dress may necessitate reimbursement for the costs of the religious garb if it would not otherwise be a typical part of the employee’s wardrobe.

The EEOC guidance provided some helpful examples to aid employers with addressing accommodation requests.  These examples further demonstrate that requests for accommodations should be considered on a case-by-case basis and with an understanding of the religious custom at issue and the employee’s beliefs regarding that custom.

After settling two religious discrimination suits with the Equal Employment Opportunity Commission (“EEOC”) last month, clothing retailer Abercrombie & Fitch scored a big win this week in another religious discrimination case before the Tenth Circuit Court of Appeal, which found that the EEOC did not prove its failure to accommodate claim for a Muslim job applicant denied hire by an Abercrombie store in Oklahoma because she wore a hijab (a religious headscarf), reversing a lower court.

Ordering judgment for Abercrombie, the Tenth Circuit found that the EEOC failed to show that the applicant neither informed Abercrombie of a conflict between her “inflexible religious belief” and a work rule nor requested an accommodation from compliance with the rule.  While the EEOC argued that Abercrombie was on constructive notice of a conflict between the applicant’s religious beliefs and the company’s “Look Policy,” which prohibits sales associates from wearing “caps,” the Tenth Circuit held that Title VII requires a showing that the applicant was the “source of the employer’s notice of a need for a religious accommodation.”  Because religion is “uniquely personal,” the court reasoned that only an employee or applicant will know whether the religious belief or practice is inflexible or whether he or she is observing the belief “for cultural or other reasons that are not grounded in that religion.”

This ruling comes on the heels of Abercrombie’s settlement last month of two separate religious discrimination cases brought by the EEOC on behalf of two Muslim teens for wearing hijabs.

In one matter, a district court found Abercrombie liable for religious discrimination when it fired a Muslim teenager from her “impact associate” (stockroom employee) position because she refused to remove her hijab, which Abercrombie claimed violated its “Look Policy.” Abercrombie asserted that it would harm the Abercrombie brand to allow a variance from the policy.  Observing that the job applicant had been interviewed and hired while wearing the hijab and had worked without incident for four months, the court dismissed Abercrombie’s argument.

In the other matter, a separate district court rejected Abercrombie’s defense of undue hardship on summary judgment.  There, it was alleged that a Muslim job applicant informed Abercrombie during her interview that she wore a headscarf for religious reasons.  She was later denied the job on the basis that Abercrombie claimed to be unable to accommodate her religious dress.  The retailer asserted that it could not accommodate the request to wear a hijab because of the impact of such an accommodation on store performance.

As part of the settlement between Abercrombie and the EEOC, Abercrombie has agreed to create an appeals process for denials of religious accommodation requests, inform applicants during interviews that accommodations may be available, and provide manager training on religious dress.

Given the aggressive stance that the EEOC has taken of late in prosecuting religious dress accommodations cases, it would seem likely that the EEOC will appeal the Tenth Circuit decision.  In the meantime, retailers would be cautioned against excluding a religious job applicant from employment on the basis of a dress code policy simply because the applicant does not affirmatively request an accommodation.

On September 8, 2012, California Governor Jerry Brown signed the Workplace Religious Freedom Act into law.  The law, which becomes effective on January 1, 2013, amends the California Fair Employment and Housing Act (the “Act”) to include a religious dress practice or a religious grooming practice as a belief or observance covered under the Act’s protections against religious discrimination.

The new law also specifies that it is not reasonable to segregate an employee from the public or other employees as an accommodation of the individual’s religious dress practice or religious grooming practice.  Inasmuch, retail employers may not limit such employees to the back of the store due to their religious attire or grooming practice.

As with any new law, sure to come is a bevy of litigation testing the area of grey between the black and the white.  A new case involving The Walt Disney Company (“Disney”) may lead the way.  In August 2012, Imane Boudlal, a former employee of the Storytellers Café at the Grand California Hotel & Spa, located at the Disney Resort in Anaheim, California, filed a lawsuit against Disney alleging religious discrimination and harassment.

Boudlal, a naturalized U.S. citizen of Moroccan origin who is Muslim, began working for Disney in 2008.  Two years later, she decided to permanently wear a hijab, the headscarf worn by Muslim women.  She alleges that she asked her supervisors at Disney for permission to wear the hijab at work, but was informed that it violated the Disney “look.”  Boudlal further alleges that Disney did not enforce its “look” policy on an equal basis, and that other employees were allowed to visibly display tattoos, religious insignia or ostentatious hair and nails.  Boudlal also alleges that she offered to wear a hijab in colors matching her uniform, but that Disney rejected her offer and instead suggested that she be transferred to a position at the back of the restaurant or wear a hat on top of her hijab.

Although Disney has not had an opportunity to make its case at this early stage of the litigation, it issued a statement decrying the allegations in Boudlal’s complaint.  Particularly, the statement indicates that Boudlal was provided with multiple options to accommodate her beliefs, as well as several options to allow her to continue wearing her own hijab, all of which were rejected.  The statement also indicates that Boudlal has since refused to return to work.

Supposing that Disney allowed Boudlal to wear her hijab, but also requested that she cover it with a hat, it is unclear whether such actions would violate the Act.  Also unclear is whether the Act permits an employer to provide a headdress that matches its uniform.

What is clear is that employers should proceed with caution when addressing religious accommodation issues and avoid excluding the employee from customer interaction simply due to the employee’s religious dress or grooming practices.  Before any accommodation is provided or denied, legal counsel should be sought to ensure that the decision does not run afoul of the Act.

Title VII of the Civil Rights of 1964 (“Title VII”) not only prohibits employers from discriminating against employees or prospective employees because of their religion, but it also requires employers to “reasonably accommodate” the religious practices of employees provided that such reasonable accommodations do not cause the employer “undue hardship.”  According to the EEOC Compliance Manual, reasonable accommodations may include, among others, scheduling changes, voluntary shift swaps, lateral transfers, and other workplace policy/practice modifications.

The topic of religion can pose tricky issues for employers.  Often, issues involving religion come up before the employment relationship is even cemented.  The EEOC seems to be taking a significant interest in such matters, as it recently filed two lawsuits against national companies for religious discrimination against prospective employees.

Two Lawsuits

On March 3, 2012, the EEOC filed a Title VII discrimination case against Convergys in the U.S. District Court for the Eastern District of Missouri.  EEOC v. Covergys Corp., (E.D. Mo. 2011).

Convergys placed an advertisement stating that applicants for a customer service position should be able to work a flexible work schedule and overtime.  A Jewish applicant informed the company’s recruiter during an interview that he would not be able to work on the Jewish Sabbath.  The recruiter allegedly responded that if applicant could not work Saturdays, the interview was over.

The complaint alleged that the company violated the law by refusing to hire the Jewish applicant or other employees based on their refusal to work on Saturdays because of their religious beliefs.  The EEOC sought, among other things, injunctive relief to enjoin Convergys from refusing to hire on the basis of religion and denying reasonable religious accommodations to its employees.  The EEOC claimed that given the large size of the call center (approximately 500 employees), it would not be impossible to give an employee an alternative work schedule.  According to the EEOC, the company violated Title VII by refusing to hire the applicant without even discussing possible accommodations for his religion.

Convergys settled the case by agreeing to pay $15,000 and entering into a two-year consent decree which obligates the company to make sure that its recruiters are trained on religious discrimination.  The company must also provide a notice to all future applicants that accommodations may be available for their religious beliefs.

In June 2012, the EEOC filed another religious discrimination complaint against Voss Electric Co. d/b/a Voss Lighting In this case, one of the company’s supervisors listed an employment opportunity for  Voss on the Internet board of the First Baptist Church of Broken Arrow.  An applicant who heard of the opening through a client who was a member of the church applied for the job.  After a successful first interview, the applicant’s name was passed on to the branch manager who communicated with the applicant at length about his religious affiliations and ties to First Baptist Church of Broken Arrow.  The branch manager asked the applicant to identify every church he recently attended, where and when the applicant was “saved,” and whether the applicant was willing to come into work early to attend Bible study.  The branch manager openly disapproved of the applicant’s (negative) answers, and the position was not offered to him.

As the open position involved no religious duties whatsoever and the EEOC believed that the job was not offered because of the applicant’s religious beliefs, it found the company’s decision not to hire the qualified applicant discriminatory.  The EEOC is therefore seeking to enjoin the company from refusing to hire on the basis of religion and denying reasonable religious accommodations in addition to monetary damages.

The Take-Away for Employers

Both of these recent lawsuits should remind employers to put in place non-discriminatory policies and procedures at the recruitment stage.  Employers should:

• Train recruiters and other personnel conducting interviews about what questions can and cannot be asked and what considerations should be made in the hiring process.
• Interviewers cannot ask any questions about a potential employee’s religious beliefs, affiliations, and/or current or future practices.
• Interviewers can ask if potential employees are available to work on weekends or overtime but cannot ask whether employees observe specific religious holidays.
• Not automatically deny positions to applicants who cannot work the required/preferred hours because of their religious beliefs – employers must consider alternatives and engage in an interactive process.
• Use various methods of recruiting.
  • Adopting recruitment practices, such as word-of-mouth recruitment, that have the purpose or effect of discriminating based on religion can violate Title VII and state and local laws.
  • Advertising on church or other religious bulletins could have the effect of discriminating against other religions, especially if other recruitment channels are not used.
• Establish written objective criteria for evaluating candidates and apply the criteria consistently.
• Publish policies prohibiting religious discrimination and providing that the company accommodate religious accommodation requests from applicants and employees.

*Anisha Mehta, a summer associate, assisted in the preparation of this blog posting.

New York City employers take note: under the New York City Human Rights Law (“NYCHRL”), it is now considerably more difficult for employers to establish “undue hardship” in the context of denying an employee’s request for a reasonable accommodation due to his or her religious observance or practice. While previously silent on the issue, the NYCHRL now includes a definition of the term “undue hardship,” as follows: “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).” This language mirrors the definition currently included in the New York State Human Rights Law (“NYSHRL”), and along with other changes described below, was included in Local Law 54, 2011 (entitled the Workplace Religious Freedom Act) (the “Act”). The Act was unanimously passed by the New York City Council and became effective when signed by Mayor Michael Bloomberg on August 30, 2011.

Read the full advisory online