Abercrombie Hijab Case Could Create Damned if You Do, Damned if You Don’t” Situation for Employers

All reports and the transcript from Wednesday’s Supreme Court argument in the closely-watched Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc. case seemed to reveal a Court that was skeptical of the employer’s position, which is frankly too bad. Most readers are probably aware of the the facts of the case, but, in a nutshell, a young woman applied for a job at an Abercrombie store wearing a black hijab, or head scarf, during the interview. She said nothing about the scarf, or that it was a religious article. She was later not hired, in part because the manager believed that the scarf would violate Abercrombie’s dress code – The Look – which required employees to adopt an East Coast preppy” clothing style. The allegation was that Abercrombie violated the law by refusing to accommodate her religious beliefs. The company’s defense was the applicant never disclosed that she needed this accommodation. The Tenth Circuit agreed, and threw out an award for the plaintiff, precisely because the applicant had not asked for the accommodation.

During oral argument, the court seemed to wrestle with the fact of whether the applicant should have disclosed that the scarf was part of her religious observance, and appeared to be siding with the plaintiff in that regard. They asked the employer’s lawyer questions about how the company would treat a nun in a habit or an applicant wearing a Sikh turban.

Frankly, those are not fair comparisons, and I am not sure why the high court did not see that. A nun in a habit is plainly wearing religious garb, just as is a Sikh in a turban or a Jew wearing a yarmulke. A head scarf, on the other hand, may be subject to interpretation. Arguably, an employer may not need to ask whether an applicant wearing a yarmulke needs to wear the object as part of his religious observance, because that is obvious. However, if that applicant needs to work Saturdays, and does not disclose that religious observance will require some accommodation of that schedule – then what is the employer to do? There, the religious issue is hidden,” unless the applicant discloses it.

If the interviewer starts asking questions about religion, he could be accused of religious bias. However, if the applicant does not have to disclose the needed religious accommodation, the company could find itself hiring a person who cannot work the needed schedule.

The same issue occurs if a woman is wearing a scarf or a piece of jewelry or clothing which is not obviously religious. If the employer starts asking questions about the object, and then does not hire the applicant – those questions will likely be cited as evidence that the interviewer was biased against the applicant based upon his/her religion.

If the court rules in favor of this applicant, it will leave employers in a difficult spot. The employer cannot ask questions about religion, yet seemingly will be forced to.

We will all be waiting anxiously to see how SCOTUS balances these concerns.