Summer Girls, Headscarves, and the Supreme Court

Back in the summer of 1999, American pop boy band LFO had an instant hit song called “Summer Girls.” There were a lot of reasons the song was such a smash. One of them was its reference to the retail store Abercrombie & Fitch during what might have been the height of the brand’s popularity: “I like girls that wear Abercrombie & Fitch,” and “You look like a girl from Abercrombie & Fitch,” are two such lyrics in the song.

Sixteen years later, what it means to look like a girl from Abercrombie & Fitch was once again the topic of summer conversations. Perhaps no one could have predicted, however, that these conversations would surround a topic as serious as the U.S. Supreme Court’s view on religious discrimination in the workplace. Yet that is exactly what happened following the Supreme Court’s June 1, 2015, decision in EEOC v. Abercrombie & Fitch Stores Inc.

The case involved religious discrimination claims by a female Muslim job applicant who wore a black hijab (headscarf) to her interview and was not hired. The circumstances surrounding the hiring decision were somewhat unusual. The plaintiff did well enough in her interview for the assistant store manager to identify her as an acceptable candidate for employment based on the company’s rating system. However, the plaintiff never specifically conveyed that she was wearing the headscarf for religious reasons or that she would need to wear it each time she worked if hired. In fact, neither she nor the assistant manager who conducted the interview brought up the headscarf or the plaintiff’s religion.

Nonetheless, the assistant manager admittedly came away from the interview assuming that the plaintiff was Muslim, that her faith required her to wear the headscarf, and that she would wear it to work if hired. This led to decisions by a handful of company managers that later would form the crux of the plaintiff’s discrimination claim.

A main decision involved the interpretation of Abercrombie & Fitch’s dress policy (i.e., its “Look Policy”). A regional manager determined that the plaintiff’s headscarf would violate the Look Policy’s prohibition against headwear and that the plaintiff should not be hired. However, this created a predicament because the scores from the plaintiff’s interview suggested that she was qualified to be hired. It appears the issue was resolved by creating a new score sheet for the plaintiff on which she was ranked lower in the “appearance and style” category than on the original sheet (i.e., for not complying with the Look Policy during the interview). This dropped her below the total score needed to be considered for employment, and she was not hired. Shortly thereafter, the plaintiff learned from a friend who worked at the store that she had not been hired because she wore the headscarf to the interview. An EEOC discrimination charge followed.

During the litigation that ensued, the main issue was whether the plaintiff could pursue a religious discrimination claim despite not having specifically informed the company of the conflict between her sincere religious beliefs and the Look Policy requirements. This became the focus of the Supreme Court’s decision, and it is the reason the decision is noteworthy for employers going forward.

Most importantly, the decision establishes a rule that a plaintiff need not show that an employer had specific knowledge of the need for a religious accommodation before there can be liability for failing to provide it under federal antidiscrimination laws. Employers may be liable if an applicant can show that the need for an accommodation—likely even if the suspected need was not confirmed—was a motivating factor in the employer’s decision.

So what are the lessons and what is the impact going forward for employers?

Despite this decision, employers still should avoid asking an applicant questions that are calculated to elicit information about religion or religious practices. There is no obligation to ask about the need for religious accommodation unless the employer is on notice of the potential for such need. But the employer cannot purposely avoid making the inquiry because it does not want to create the potential need for accommodation. In many ways, this is analogous to an employer’s obligation when interviewing an applicant with an obvious physical impairment. Once the employer is on notice of a potential disability, it cannot avoid the potential for discrimination simply by ignoring the issue and claiming that the applicant never disclosed a disability. In either situation, the employer that ignores the elephant in the room acts at its own peril.

Perhaps the employer’s best defense against such claims begins by going back to the basics. First, clearly communicate to applicants the normal requirements of the job and get affirmation from the applicants that they can meet those requirements. If that includes dress code requirements, weekend or holiday work requirements, or other things that may conflict with religious practices, the applicant is on notice of the requirements and the burden shifts to them to request accommodation. If they don’t do so, then it will be difficult for them to claim discrimination if they are not hired. If they do request an accommodation, the employer can deal with the facts, obtain legal advice as necessary, and make an informed decision. Had the managers done that in Abercrombie & Fitch, it would have been a different case likely with a different result.

Second, if the employer is on notice of the possible need for religious accommodation, initially focus questions on the job requirements. If the applicant indicates that they cannot meet a job requirement, it is acceptable to ask why. If the applicant provides religious reasons, it is acceptable to inquire about the religious restrictions involved and what accommodation the applicant would like from the employer. Normally, the interview questions on that point should stop there. After the interview, the employer can investigate the claimed religious restrictions (which may or may not be legitimate), consider possible accommodations, and seek legal advice if needed. Of course, it may be possible to avoid the issue altogether if there are more qualified applicants for the position.

Third, employers probably should not take the initiative by researching religious practices so that they know what they may need to accommodate in the future. True ignorance of religious practices may be a defense. Had the managers in Abercrombie & Fitch not suspected that the applicant was Muslim based on her headscarf, there would have been no liability. At the same time, employers that attempt to disclaim knowledge of commonly known religious practices will have an uphill climb.

While this decision is disconcerting, the reality is that the law has not changed that much. Most legitimate requests for religious accommodation are easily met by most employers. When that is not the case, the employer need not make the accommodation if it would create an undue hardship for the employer. Finally, employees normally are entitled only to the accommodation if it is based upon their sincerely held religious beliefs. Many times, that simply is not the case, which could be easier to prove than you may think.

Thus, even though the Supreme Court’s decision in the Abercrombie & Fitch case might top the charts for many employers this summer, there are still important aspects of the more familiar playlist that remain unchanged.