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Religious accommodations left up to employee’s request

Q&A with Kristin Simpsen

published in The Oklahoman | October 4, 2013

Abercrombie & Fitch Stores made headlines in 2011 when a federal court in Tulsa, Oklahoma, ruled the retailer committed religious discrimination when it failed to hire a female applicant because she wore a hijab, a head scarf frequently worn by Muslim women, to the interview. The Equal Employment Opportunity Commission (EEOC), which brought the lawsuit on behalf of the applicant, alleged the retailer denied her employment because her black head covering violated the store’s dress code, the Look Policy. The company appealed, and on October 2, 2013, the Tenth Circuit Court of Appeals reversed the lower court’s decision. Labor and employment attorney Kristin Simpsen was featured in The Oklahoman discussing the case and the appeals court’s reasoning in ruling in favor of the clothing company.

“While federal law prohibits religious discrimination and requires employers to reasonably accommodate the religious practices of an employee or prospective employee, the Tenth Circuit ruled in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc. that the employee has the burden of informing the employer of his/her sincerely held religious beliefs and the conflict between those beliefs before the employer is required to engage in an interactive process to determine if a reasonable accommodation is possible,” said Simpsen. In making its ruling, the court found in favor of the employer because the applicant failed to inform Abercrombie & Fitch that her wearing of the hijab was in keeping with her religious beliefs, and that it conflicted with the company’s Look Policy.

Simpsen explained that federal law requires employers to make a reasonable accommodation for the sincerely held religious practices of an employee or applicant, unless doing so would impose an undue hardship on the employer. Examples of reasonable accommodations may include modification of dress code or grooming requirements, job reassignments or flexible scheduling.