The Supreme Court completes my religious discrimination superfecta

Have you noticed a theme here at the blog this week?

I mean, other than the crappy posts.

Well, that and the crotch grabbing.

It’s been all about religious discrimination. Good ahead, scroll down the page, there they are.

And yesterday, the Supreme Court announced that it is going to decide EEOC v. Abercrombie & Fitch Stores, Inc., a case involving an employee who wore a headscarf (or “hijab”) to work for religious reasons, but was told to remove because it conflicted with Abercrombie’s clothing policy. The lower court granted summary judgment to the EEOC. The Tenth Circuit reversed and granted summary judgment for Abercrombie, concluding that the employee never informed Abercrombie that she needed a religious accommodation to wear the hijab at work.

Now, the Supreme Court will have to decide whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

Prediction: Abercrombie wins. I can’t see how a majority of the Court concludes that anything less than actual notice of a particular individual’s sincerely-held beliefs would create a duty to accommodate them.

  • Bob Small

    Eric-While I agree with you that the employer must have actual knowledge of the employee (or applicant’s) sincerely held religious beliefs, the way SCOTUS has framed the issue gives me pause in predicting a win for Abercrombie here.. It has not only asked if liability must be premised on the employer’s actual knowledge but whether that knowledge has to be affirmatively provided to the employer by the employee or applicant. I am concerned that the Court might rule that where there are facts that would lead the employer to make reasonable inquiry it has a duty to do so and return the case for a decision on that issue. For example, if the applicant wears a hijab or yarmulke to the interview and the employer has a dress code that would prohibit that, does the employer have a duty to inquire if the garment is worn as part of a sincerely held religious belief and, if the answer is “yes” provide a reasonable accommodation? It is similar to an obvious disability observed during the interview process. The employer has greater knowledge of its policies that would be offended by the dress and, for that reason, the Court might impose the burden of inquiry on the employer if reason for further inquiry is given by the applicant.

  • The Manager

    Or perhaps give out a copy of the dress code policy with the employment application or in the job decription detailing the job?