July 23, 2016

Abercrombie & Fitch, One Year Later

The Supreme Court decided EEOC v. Abercrombie & Fitch Stores, Inc. one year ago on June 1, 2015.  At the time it was unclear what effect it might have on employers.

The facts of the case are fairly simple.  A female Muslim interviewed for a job while wearing a hijab (headscarf) at Abercrombie & Fitch.  The assistant store manager who interviewed her scored her well enough to hire her based on the company's rating system.  She never indicated that she wore the headscarf for religious reasons or that she would wear it if hired.  Despite not discussing it, the assistant manager believed that she would wear the headscarf to work for religious reasons.  The company had a dress policy which prohibited headwear.  A manager determined that she should not be hired and she was then re-rated with a lower score for her appearance, which dropped her below the score required for hiring.  She filed a claim for discrimination with the EEOC that made its way to the Supreme Court.

One of the main issues in the case, and a reason why it is important for employers, was that she was pursuing a claim for discrimination based upon religion when she never advised the company that there was a conflict between the store policy and her sincere religious beliefs.  The threshold issue was whether she could even pursue a religious discrimination claim when she did not advise the company.  She never asked for an accommodation.

In his opinion, Justice Scalia essentially held that an employer need not have specific knowledge of the need for a religious accommodation before there can be liability.  It is enough that the employee can show the need for an accommodation and the employer factored that into its decision even if it was not confirmed.  Here, Abercrombie & Fitch suspected she would wear the headscarf, and for that reason did not hire her.  It was enough that the employer had the mere suspicion, even though it did not know, and the employee did not inform the employer.

The decision does not address nor does it change the situation where the employer does not know of a need and does not base its decision on the unknown need.  However, it creates the problem that a case can move forward against an employer even in the face of an employer claiming that it had no knowledge.

True ignorance of the need for an accommodation remains a defense.  Unfortunately, the manager and assistant manager at Abercrombie & Fitch believed there was a religious reason for the wearing of the headscarf and therefore could not claim ignorance.  This means that employers should not research and inform themselves about religious requirements in advance but should be aware of them when they arise.  It also does not allow employers to ignore the obvious, such as an employee with a clear physical disability even if the candidate does not specifically request an accommodation.

The Abercrombie & Fitch case has been cited numerous times in the past year, but there does not appear to be an overwhelming amount of cases flowing out of this ruling.  In fact, several cases have made it clear in interpreting the decision that it only applies when the employer suspects that the candidate is exercising a religious practice.

What It Means to You

The best practice for an employer remains to clearly communicate job requirements, including dress code, up front and confirm that the candidate is able to comply with the requirements.  If the candidate does not request an accommodation, it will be very difficult for them to claim discrimination when, to your knowledge, no accommodation was necessary and they were not hired.  If an accommodation is requested, it is permissible to ask the basis of the need for the accommodation and specifically what accommodation is being requested.  The employer can then research the need for an accommodation, review the accommodation requested, and seek the advice of legal counsel.