Wednesday morning, the U.S. Supreme Court will hear oral arguments in the case of EEOC v. Abercrombie & Fitch Stores, Inc. The EEOC claims the clothing retailer violated the civil rights of a Muslim woman, Samantha Elauf, by denying her job because of her religious headscarf. Abercrombie counters that they were not aware Elauf was wearing the scarf for religious purpose because she did not explicitly inform them.
The Court has taken the case to address a very specific legal question: Must the prospective employee specifically request a religious accommodation? Or should the employer see inquire about the potential accommodation need?
The Baptist Joint Committee and several other religious liberty advocates filed a brief defending Elauf’s right to wear a religiously required headscarf at work, and asking the Court to overturn the 10th Circuit’s ruling, which favored Abercrombie. First, the brief argues, employers are often in a better position than job applicants to know whether or not a work requirement exists that may conflict with religious garb needs. On top of that, leaving the burden on the shoulders of the applicant gives the employer an incentive to remain quiet, rather than engage in helpful dialogue about religious accommodation needs.
Here is a snippet from the brief:
Once Abercrombie’s managers became concerned about Ms. Elauf’s headscarf, they should have engaged her in discussion about their concern. Without inquiring into her religious beliefs, they could have told her (a) that wearing a headscarf would conflict with the store’s “look” policy, but (b) that if she were wearing the headscarf for religious reasons, there was a possibility the practice could be accommodated, if it could be done without an undue burden to the employer. If Ms. Elauf then chose to reveal that she was in fact wearing the headscarf for religious reasons, she and the managers could have discussed the issue. And in all likelihood, they could then have worked out an accommodation that would have met both their legitimate needs.
Yet under the standard adopted by the Tenth Circuit, employers like Abercrombie have a powerful incentive to avoid any meaningful interaction with applicants and to ignore recognized conflicts rather than communicate about possible solutions. Such an approach defies common sense.