Employers May Have Duty to Inquire About Religious Accommodations Needed Regardless of Whether Requests are Made


By: Joyce  M. Mocek

Earlier this week the U.S. Supreme Court ruled in EEOC v. Abercrombie & Fitch Stores, Inc. that Abercrombie & Fitch, a retail chain,  may have violated Title VII of the Civil Rights Act of 1964 when they denied a female job applicant, Samantha Elauf, a job because she was wearing a head scarf which did not fit in with the Company’s “Look Policy.”  The Supreme Court maintained that an employer should engage a job applicant in a conversation to inquire about what, if any, accommodations are needed, regardless of whether the applicant inquires or requests an accommodation,  and then assess the reasonableness of a proposed accommodation.

In 2008, Samantha Elauf applied for a sales position at an Abercrombie & Fitch store.  She was rated as qualified, but was denied the job because her black headscarf or hijab did not comply with Abercrombie & Fitch’s dress and appearance policy.   Elauf, a practicing Muslim, was not questioned about her headscarf during the interview, nor told that it violated their policy.   She did not specifically state in the interview that she wanted Abercrombie & Fitch to provide a religious accommodation due to  her faith.   During the interview, the interviewee jotted in his notes that the applicant would not be able to comply with the Company’s “Look Policy”, even though they had not discussed it.   Abercrombie & Fitch denied Elauf the job.   With the assistance of the Equal Employment Opportunity Commission, Elauf filed suit against Abercrombie & Fitch. 

The Supreme Court, in reversing the prior appellate court decision, focused on whether the fact that Elauf was wearing a headscarf during the interview was a “motivating factor” in the employer’s decision to not hire her, noting that the law “prohibits actions taken with the motive of avoiding the need for accommodating a religious practice.”   Ultimately, the Supreme Court remanded the case back to the lower court for further review with specific guidance on the obligations of employers in religious accommodation situations.

In light of the ruling, employers should review their employee handbooks and policies to ensure compliance with the ruling and determine whether any of their policies could potentially be deemed discriminatory.   Additionally, the decision reinforces the need for continued management training on compliance with workplace discrimination rules.