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Supreme Court takes up religion in the workplace

The Supreme Court will hear arguments Wednesday in a case that could help define the limits of religious freedom in the workplace.

The case, known as Equal Employment Opportunity Commission (EEOC) v. Abercrombie, centers on Samantha Elauf, a practicing Muslim who applied for a position as a model at the Abercrombie Kids store in Tulsa, Okla., in 2008. She was denied employment because she was wearing a black headscarf, known as hijab, during her interview.   

Abercrombie has a “look policy” that prohibits employees from wearing black clothing and “caps;” it rates prospective employees based on their dress. Though the policy fails to define what constitutes a “cap,” it says an employee is subject to “disciplinary action up to and including termination for failing to comply with” the cap policy.

In the case, the EEOC argues that Abercrombie violated Title VII of the Civil Rights Act by failing to accommodate Elauf’s religious beliefs. Abercrombie claims Elauf never informed hiring managers of the conflict and that allowing her to wear a headscarf would have imposed an undue hardship on the Ohio-based company.

The company’s position was upheld by the 10th Circuit Court of Appeals, after a federal district court sided with the EEOC.

The high court must decide whether employers have to ask prospective workers if they need a religious accommodation, or if it is it up to the job seekers to make the need known.

Business interests are paying close attention to the case.  

“Placing the burden on employers will open up Pandora’s box of religious discrimination claims,” said Andrew Hoag, a labor and employment lawyer with the Los Angeles office of Fisher & Phillips LLP.

“It seems reasonable to place the burden on the employee, who knows their own clothing or grooming practices.”

Hoag said if the EEOC prevails, employers could be put in the legally thorny position of inquiring about an applicant’s religion.

“If the Supreme Court rules in the employee’s favor, employers are going to face a catch-22,” he said. “They will now have a difficult process during interviews. The employment decision will no longer be based on the best applicant; it will be infused with employers having to calculate the odds of future litigation.”

The EEOC’s own guidance on avoiding religious discrimination in the workplace cautions employers to “avoid assumptions or stereotypes about what constitutes a religious belief or practice or what type of accommodation is appropriate,” according to court documents.

But civil rights advocates say the burden should be on employers, because they are in a better position to determine whether a religious accommodation would create an undue burden on the business.

 “I think this is a case of clear religious discrimination,” Daniel Mach, director of the American Civil Liberties Union’s Program on Freedom of Religion and Belief, said of the Abercrombie case. “The lower court’s approach really undermines religious protections and here’s why — it opens a convenient loophole for employers to engage in religious discrimination by their own assumptions.”

 Title VII makes it illegal for an employer to discriminate against any individual in compensation, terms, conditions or privileges of employment because of their religion.

Though Abercrombie said it did not know explicitly that Elauf needed a religious accommodation, court documents show that an assistant manager at the store correctly assumed that Elauf’s headscarf was being worn for religious reasons.

While the Supreme Court took the case hoping to weigh in on how employers should handle religious dress, some employment lawyers say there’s a chance that the case will be dismissed altogether.

“I don’t think the way the case is now postured that the court will even get to the issue they thought they were going to be able to sink their teeth into,” said Robert Fitzpatrick, a principal of a Washington, D.C., law firm specialized in employment issues.

Fitzpatrick said failure to accommodate someone’s religious beliefs has historically been treated as non-intentional discrimination — a finding that would likely translate to a slam dunk for Abercrombie.

 “I wonder if the justices don’t say to themselves and to one another, if we issue a decision that’s in Abercrombie’s favor, the headline is going to be ‘Supreme Court of the U.S. refuses to accommodate a Muslim woman’s religious practice of wearing a headscarf,’ ” he said. “That’s a headline no one in this country wants at any point in history, certainly not now.’ ”