by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State
Yesterday’s Supreme Court opinion in EEOC v. Abercrombie & Fitch Stores was unusually short, a mere six and one-half pages. The Court issued a sensible ruling that ― unlike last year’s decision in Burwell v. Hobby Lobby Stores ― upheld the religious freedom of employees.
Abercrombie & Fitch had a policy requiring its employees to maintain a certain “look.” “Caps” were not allowed. Samantha Elauf, a Muslim, applied for a job at an Abercrombie store. She was apparently quite stylishly dressed, but she wore a headscarf in accordance with her faith. Abercrombie managers refused to hire her because of the headscarf, even though they believed that the headscarf was religiously motivated.
Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire a job applicant because of his or her religious practice, unless accommodating that practice would impose an undue burden on the employer. Yet the U.S. Court of Appeals for the Tenth Circuit ruled that Abercrombie did not violate Title VII because Elauf did not tell Abercrombie that she needed a religious accommodation.
The Supreme Court reversed that ruling yesterday and allowed Elauf’s case to proceed. The Court explained that when an employer knows or suspects that an employee’s practice is religiously motivated, the employer cannot deny employment because of that practice unless accommodating it would impose an undue hardship.
The Supreme Court’s ruling is sensible, while the Tenth Circuit’s approach was eminently unfair. There was no evidence here that Elauf knew about Abercrombie’s prohibition on “caps.” How can a prospective employee be expected to request an accommodation if she has no idea that she might need one?