Tenth Circuit: Burden on employee to speak up about religious accommodation

By Kristen Simpsen

Yesterday, the U.S. Tenth Circuit Court of Appeals issued a decision that put employees on notice that the Tenth Circuit expects employees to speak up for their rights regarding religious accommodation.

The decision was in the Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. case and comes on the heels of a settlement between the EEOC and the retailer on similar religious accommodation claims in California.

In this case, the EEOC brought suit against Abercrombie & Fitch after the retailer failed to hire an applicant because she wore a black headscarf (a “hijab”) during her interview. The retailer’s dress code – the “Look Policy” – prohibited employees from wearing black clothing or head coverings. During the interview, neither the applicant nor the interviewing manager discussed the applicant’s wearing of the hijab or her religious beliefs. The interviewing manager testified that she assumed the applicant was Muslim, but did not know this to be certain. The interviewing manager believed the applicant was qualified to work at the retailer, but the district manager stated that the applicant should not be hired because the wearing of a headscarf was inconsistent with the Look Policy.

Following a lawsuit brought by the EEOC on the applicant’s behalf, the district court granted summary judgment in the EEOC’s favor. The issue of damages was submitted to the jury, who returned a $20,000 verdict.

The Tenth Circuit reversed the district court and entered summary judgment in favor of the retailer instead. In reaching this decision, the appeals court held that the record evidence showed that the applicant never informed the retailer (prior to the hiring decision) that the wearing of a hijab was because of her religious beliefs and because the applicant never informed the retailer that the wearing of the hijab would conflict with the Look Policy. The court further noted that it would be inappropriate to place an obligation upon the employer to inquire about the need for a religious accommodation as such a duty would cause the employer to unnecessarily intrude upon the employee’s religious beliefs and could further cause the employer to fun afoul of Title VII prohibitions on asking or speculating about an employee’s religious beliefs.

The bottom line

Employers are under no mandatory obligation to provide religious accommodations until after an applicant or employee has informed the employer that certain conduct is required or forbidden by the individual’s religious beliefs and that there is a conflict between a work rule and an employee’s religious beliefs. However, once employers have knowledge of a need for a religious accommodation, the employer must then engage in the interactive process to determine if an accommodation is possible.