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EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-5110 (10th Cir. Oct. 1, 2013)

Within a week of Abercrombie & Fitch ("A&F") announcing a settlement with the EEOC of two Title VII religious accommodation claims involving hijab-wearing employees in California, the Tenth Circuit orders entry of judgment for the clothing retailer against the EEOC in a similar case arising out of Oklahoma. The 2-1 decision applies a formalistic circuit rule that "the applicant or employee must initially provide the employer with explicit notice of the conflicting religious practice and the need for an accommodation for it." Employees are forewarned that, where workplace accommodations are concerned, courts expect you speak up for your rights. 

EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-5110 (10th Cir. Oct. 1, 2013): A&F maintains a dress code, the "Look Policy," that - for relevant purposes here - prohibits the wearing of head coverings and black clothing. Samantha Elauf attended her job interview as a sales-floor Model wearing a black headscarf ("hijab"). During the interview, neither the assistant manager (named Cooke) nor Elauf discussed the applicant's religion or her wearing of the hijab. While Cooke thought Elauf was qualified Randall Johnson, her district manager, said that Elauf "should not be hired because she wore a headscarf-a clothing item that was inconsistent with the Look Policy."

The EEOC sued on Elauf's behalf, alleging a violation of A&F's duty of religious accommodation under Title VII. On cross-motions for summary judgment, the court entered judgment in favor of the government; a jury later awarded $20,000 in compensatory damages.

The panel majority vacates the summary judgment and orders entry of judgment to A&F. It holds that

"Abercrombie is entitled to summary judgement [sic] because there is no genuine dispute of material fact regarding this key point: Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie's clothing policy."

From that summarization, the majority takes another 61 pages (!) to lay out its reasoning. In essence, the majority observes that A&F management was never once aware that Elauf wore a headscarf for specifically religious as opposed to cultural reasons. Noting that some activities can partake of both religious and secular purposes, it is the adherent - not the employer - that is obliged to inform the employer of a religious objection to a workplace rule. More particularly, the religious practice must be

Because the Tenth Circuit applies a version of the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), requiring the employee (at the prima facie stage) to "show that . . . he or she informed his or her employer of this belief," the majority holds that the EEOC failed to prove this threshold fact. Even if an employee were not obliged to explicitly declare the need for an accommodation under circuit law,

"notice would need to be based on an employer's particularized, actual knowledge of the key facts that trigger its duty to accommodate. And, as explicated below, there is no genuine dispute of material fact that no Abercrombie agent responsible for, or involved in, the hiring process had such actual knowledge-from any source-that Ms. Elauf's practice of wearing a hijab stemmed from her religious beliefs and that she needed an accommodation for it."

The interviewer might have assumed that Elauf was Muslim, and that she wore a hijab for religious reasons, yet the EEOC seemingly presented no facts showing that Elauf conveyed these critical facts to A&F. "[Given Title VII's conception of religion as a uniquely personal and individual matter, Ms. Cooke's knowledge that Ms. Elauf elected to wear a hijab would be far from sufficient information to provide her with the requisite notice that would trigger an employer's duty to accommodate."

Furthermore, to place the burden on the employer to inquire about the need for accommodations would (according to the panel majority) require them to intrude upon the employee's religious beliefs, and possibly to "recount[] a laundry list of all of the practices that employees cannot do in the workplace" to avoid liability. Citing various EEOC documents, the panel notes that an employer might even place itself at legal peril if it initiated the conversation, because "under Title VII an employer is affirmatively discouraged from asking" or even speculating about employee's religious beliefs.

Judge Ebel, while agreeing that the district court erred in granting summary judgment to the EEOC, dissents from entry of judgment for A&F. The dissent rejects the rigid application of the Tenth Circuit's prima facie test, noting that other circuits have allowed juries to decide that employers had constructive knowledge of a need to accommodate. Indeed, Judge Ebel faults his colleagues for needlessly "creating a conflict among the circuits," raising a prospect of en banc or even Supreme Court review.

Lenity in the prima facie framework was especially warranted under the record in this case:

"Of course, the reason Elauf never informed Abercrombie of this conflict is that, accepting her evidence as true as we must, Elauf did not know that there was a conflict between her religious practice of wearing a hijab and Abercrombie's Look Policy. However, critically, Abercrombie did know there might be a conflict, because it knew that Elauf wore a headscarf, assumed she was Muslim and that she wore the headscarf for religious reasons, and knew its Look Policy, as ultimately determined by Randall Johnson, the person who made the decision not to hire Elauf, prohibited its sales models from donning headwear. Based on these assumptions, and without ever informing Elauf that Johnson ultimately determined that the hijab would not be allowed, Abercrombie refused to hire her because she wore a hijab. In this way, Abercrombie was able to avoid any interactive dialogue with Elauf about whether Abercrombie could reasonably accommodate Elauf's religious practice."

While agreeing that "it is the job applicant who must inform the employer that she has a religious belief that conflicts with the requirements of the job," in this case Judge Ebel would hold that the burden rested on A&F, "with superior knowledge of the conflict between its Look Policy and Elauf's apparent religious practice, a conflict of which Elauf was unaware." The retailer, not the applicant, should have thus pursued accommodation. A jury could hold that A&F fell short of its Title VII duties.

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