Author: Brynn Stylinski, Associate Member, University of Cincinnati Law Review
Title VII has prohibited religious discrimination and required accommodation of religious needs in the workplace since 1964. Last year, in EEOC v. Abercrombie and Fitch Stores, Inc., the Tenth Circuit ruled that an employer that denied a Muslim woman employment on the basis of her religious appearance was not liable for religious discrimination under Title VII.[1] However, this ruling is incongruous with Title VII’s purpose as a part of the Civil Rights Act of 1964 and the Tenth Circuit actually misapplied the law at issue. The Tenth Circuit’s ruling encourages employers to act with willful blindness and allows employers to discriminate on the basis of religion. The Supreme Court has granted certiorari in the case, and in order to preserve the integrity of Title VII, should overturn the Tenth Circuit’s ruling and clarify the standard of review to be applied in religious discrimination cases.
The Rationale of Abercrombie
In 2008, seventeen-year-old Samantha Elauf applied for a job at an Abercrombie Kids store in Oklahoma.[2] Prior to her interview at Abercrombie, she had worked at the same mall’s food court and other retail stores and regularly shopped at Abercrombie. Samantha wore an “Abercrombie & Fitch like T-shirt and jeans” to the interview.[3] The only problem was that since she was Muslim, she wore a religious black hijab as well. Despite passing marks on both her appearance and her interview, Samantha was not hired because the company assumed she would need a religious accommodation to wear her headscarf to work. The district manager decided Samantha’s hijab was inconsistent with the “Look Policy” and instructed the interviewer to lower Samantha’s score, thereby preventing her from obtaining the job. Despite this blatant discrimination based on Samantha’s religious practices, the Tenth Circuit held that Abercrombie and Fitch was not liable for religious discrimination under Title VII because Samantha failed to ask for a religious accommodation during her interview, and because Title VII requires employees or applicants to request an accommodation before an employer can be held accountable for discrimination.[4] The court ignored her reasonable belief that wearing her hijab would not violate company policy.[5] Samantha’s friend, an Abercrombie employee and fellow Muslim, had discussed the issue with her assistant manager and informed Samantha that a hijab would not be a problem, yet the court still required that Samantha would have had to request an accommodation for purposes of Title VII.[6]
The Tenth Circuit applied a standard that was based on the Americans with Disabilities Act (ADA), and which was developed through case law with its roots in the McDonnell Douglas framework.[7] To prove a religious accommodation claim under this standard, the plaintiff must first prove a prima facie case of discrimination before the burden shifts to the defendant to rebut the contentions or show that accommodation would be an undue hardship. To establish a prima facie case, the plaintiff must show (1) a bona fide religious belief that conflicts with the employer’s requirement; (2) that the employee informed the employer of this belief; and (3) the failure to comply with the conflicting requirement led to the firing or failure to hire.[8] The court found that Samantha failed to meet the second element, thus precluding her from bringing a claim.
The Tenth Circuit rejected the district court’s finding that the second element could be fulfilled by notice of the plaintiff’s religious conflict, provided by the plaintiff or otherwise.[9] The Tenth Circuit, relying on the plain meaning of precedent, determined that a Title VII claim for religious discrimination does not exist unless the plaintiff explicitly requested an accommodation, and the employer subsequently denied the request.[10] The court distinguished the precedent from other decisions that acknowledged the sufficiency of the employers’ actual knowledge in similar cases.[11] The court rejected the idea that Abercrombie had actual knowledge of Samantha’s religion, saying that the interviewer’s belief and the company’s assumption was not sufficient to constitute actual knowledge. It emphasized that no employee involved in the hiring process had actual knowledge that she wore the hijab for religious reasons, only that she wore the hijab.[12] According to the court, discrimination based on an assumption that a religious accommodation would be needed was insufficient. The court held that the EEOC’s Compliance Manual required the employee to “provide enough information to make the employer aware” of the conflicting religious practice or belief and the job requirement, and that simply wearing a hijab did not “provide” this information.[13] Emphasizing Title VII’s parallels with the ADA, it found that the employer has no duty to accommodate unless the applicant or employee specifically requests accommodation.[14]
The Flaws in the Tenth Circuit’s Argument
The Tenth Circuit’s interpretation of Title VII defeats the purpose of Title VII. The dissent criticized the majority’s holding that Title VII required actual notice to the employer in every situation. Despite the court’s recognition in McDonnell Douglas that its framework may not always be appropriate, the Tenth Circuit applied the framework inflexibly here.[15] The court’s decision essentially allows employers to discriminate based on religion whenever applicants are unaware of a conflict between their religious practices and company policy. Based on the word of an assistant manager, Samantha believed that wearing her hijab would not violate Abercrombie’s Look Policy. However, Abercrombie was aware of the possible conflict and discriminated based on this possibility.[16] Allowing this discrimination simply because Samantha failed to inform her employer of her seemingly obvious religious reasons for wearing the hijab frustrates Title VII’s purpose.
Strict adherence to the ADA accommodation framework ignores the fact that the ADA itself prohibits discrimination based on perceived disability, whether or not a disability actually exists.[17] Despite the Tenth Circuit’s constant reliance on the ADA in Abercrombie, it failed to recognize that the ADA forbids discrimination even if the employer does not have actual knowledge of a disability. Following the same standards used to interpret ADA, it would be appropriate to except from the actual notification requirement an employer who discriminates after perceiving that a religious conflict exists.
The dissent presented an alternate framework for cases like Abercrombie and Fitch Stores, Inc. Under this framework, a plaintiff may demonstrate a prima facie case of discrimination by showing: (1) a bona fide religious belief conflicting with company policy, (2) the plaintiff’s unawareness of the conflict, (3) the employer’s knowledge that there might be a conflict between the plaintiff’s religion and the policy, and (4) that the employer chose not to hire the plaintiff due to the possible conflict, instead of informing the plaintiff of the policy that might conflict.[18] This framework better encompasses the spirit of the law as other circuits have recognized.
Other circuits have held that the notice requirement may be met without the explicit notification of a conflict or request for accommodation from the plaintiff.[19] The Ninth Circuit has held that requesting time off for a conversion ceremony when the employer knew the employee’s wife was converting to the employee’s religion was “enough information . . . to understand the existence of a conflict between the employee’s religious practices and the employer’s job requirements.”[20] In Brown v. Polk County, the Eighth Circuit held previous reprimands for religious activity during working hours to be sufficient notice of conflict between company policy and employee religious practice.[21] In Dixon v. Hallmark Cos., the Eleventh Circuit held that requiring notice to come from the plaintiff alone was “hyper-technical.”[22] Furthermore, the Dixon court held that awareness of an employee’s previous opposition to the employer’s policies against religious display was sufficient to make the defendant aware of the religious conflict.[23] The Tenth Circuit failed to acknowledge the Eight, Ninth, and Eleventh Circuits’ broad definition of notice. The other circuits do not require actual knowledge, but instead focus on the employer’s awareness of potential conflict. The rationale behind the requirement of notice is to allow the company a reasonable opportunity to accommodate the employee, not to encourage discrimination in the absence of a request for accommodation.[24]
Looking to the Future
In Abercrombie and Fitch Stores, Inc., the Tenth Circuit chose to reject and limit the findings of the other circuits. It ignored the circumstances of the case and excused the blatant discrimination that occurred. It undermined Title VII’s purpose of prohibiting discrimination. The Tenth Circuit’s decision not only permitted employers to discriminate when hiring, but created a roadmap to make it easier for them to do so. Under the Tenth Circuit’s holding, when an employer recognizes a potential conflict with an applicant’s religious practice, it need only say nothing and, as long as the employee also says nothing, the employer may discriminate. If the employee is not aware of the need for an accommodation before the interview, the employer can discriminate before the applicant has the opportunity to ask for an accommodation. In October of this year, the Supreme Court granted certiorari in the case and will hopefully take the opportunity to clarify the law and prevent future discrimination. When the Supreme Court hears this case, it should reject this interpretation on Title VII that allows employers to take advantage of unknown company policies in order to discriminate against applicants.
[1] E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 2013) cert. granted, No. 13A1139, 2014 WL 3702553 (U.S. Oct. 2, 2014).
[2] Id. at 1111
[3] E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 798 F. Supp. 2d 1272, 1277 (N.D. Okla. 2011), rev’d and remanded, 731 F.3d 1106 (10th Cir. 2013).
[4] Abercrombie & Fitch Stores, Inc., 731 F.3d at 1111-34.
[5] Id.
[6] Id.
[7] Id. at 1122 (citing Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir. 2000)). The McDonnell Douglas framework involves a burden shifting analysis in which the plaintiff must prove a prima facie case of discrimination, after which the burden shifts to the defendant to show that the same action would have occurred absent discrimination. The burden then shifts back to plaintiff.
[8] Id. at 1122-23 (citing Thomas, 225 F.3d at 1155-56; Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1486 (10th Cir. 1989)).
[9] Abercrombie & Fitch Stores, Inc., 731 F.3d at 1123-8.
[10] Id.at 1123-4 (citing Thomas, 225 F.3d at 1155; Toledo, Inc., 892 F.2d 1481, 1486 (10th Cir. 1989); Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 319 (3d Cir. 2008) (employee obligated to tell employer of religion-work conflict); Reed v. Great Lakes Cos., 330 F.3d 931, 935 (7th Cir. 2003) (employee has duty to give fair warning)) (some citations omitted).
[11] Id. at 1124-7 (citing Dixon v. Hallmark Cos., 627 F.3d 849, 855 (11th Cir.2010) (Employers knew of employees’ fundamental Christian beliefs); Hellinger v. Eckerd Corp., 67 F.Supp.2d 1359 (S.D.Fla.1999)(Employer specifically told of plaintiff’s refusal to sell condoms for religious reasons by different employee); Brown v. Polk Cnty., 61 F.3d 650, 654 (8th Cir.1995) (employers aware of potential conflict); Heller v. EBB Auto Co., 8 F.3d 1433, 1439 (9th Cir. 1993) (employer knew religion and that employee had to miss work for religious ceremony).
[12] Id. at 1127-8.
[13] Id. at 1135 (citing EEOC Compliance Manual § 12–IV(A)(1)).
[14] Abercrombie & Fitch Stores, Inc., 731 F.3d at 1141-42.
[15] Id. at 1143-45 (citing McDonnell Douglas, 411 U.S. at 802, n. 13).
[16] Id. at 1144-4.
[17] 42 U.S.C.A. § 12102(3)(A) (West 2009). An individual is regarded as having an impairment if they are perceived to have an impairment and are subject to a prohibited action because of it.
[18] Abercrombie & Fitch Stores, Inc., 731 F.3d at 1147.
[19] Id. at 1148-9 (internal citations omitted).
[20] Heller, 8 F.3d at 1436-37,1439.
[21] Brown, 61 F.3d at 654.
[22] Dixon, 627 F.3d at 856 (quoting Hellinger, 67 F.Supp.2d at 1363) (upholding the standard of Brown).
[23]Id. at 855-6.
[24] See Hellinger, 67 F. Supp 2d at 1364.
