Under Title VII, employers have a duty to reasonably accommodate the religious beliefs of applicants and employees, where it is not an undue hardship to do so. Similar to requirements under the Americans with Disabilities Act, this includes an obligation to engage in an interactive dialogue with the applicant or employee regarding the need for an accommodation.

This month, the U.S. Supreme Court will hear oral argument on a long-running religious-accommodation case brought by the Equal Employment Opportunity Commission (EEOC) against clothing retailer Abercrombie & Fitch. The lawsuit, which was originally filed in 2009, accuses Abercrombie of refusing to hire a Muslim applicant because the hijab she wore to her interview conflicted with Abercrombie’s “preppy,” “East Coast collegiate” dress code. Perhaps to the surprise some East Coast collegians, the dress code banned headgear.

This case has important implications for when an employer’s duty to begin a dialogue with an applicant regarding religious accommodation is triggered: must the employee specifically request an accommodation, or is the employer also bound to discuss accommodations if it is otherwise on notice there may be conflict between its employment policies, and the applicant’s religious beliefs.

In October 2013, the Tenth Circuit Court of Appeals ruled in favor of Abercrombie, because the applicant did not request an accommodation to wear a hijab during her interview. This was in spite of evidence the assistant manager who interviewed the applicant “assumed that she was Muslim,” and “figured that was the religious reason why she wore her head scarf,” and was told by the district manager the applicant could not be hired because she wore a headscarf. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1113 (10th Cir. 2013), cert. granted, 135 S. Ct. 44 (2014). In other words, the court adopted a rule requiring the applicant herself request an accommodation in most instances. By contrast, other courts have held the dialogue obligation is also triggered if the employer is otherwise on notice of the possible need for accommodation, even if the applicant or employee does not herself put the company on notice. E.g., Brown v. Polk County, Iowa, 61 F.3d 650, 654 (8th Cir. 1995).

Complicating this issue for employers is the EEOC’s guidance discouraging employers from enquiring about applicants’ religious beliefs. EEOC, Pre–Employment Inquiries and Religious Affiliation or Beliefs. Indeed, Abercrombie sensibly had a policy against making such inquiries, which probably contributed to what happened: both parties were aware of the dress code, and apparently aware that the applicant was violating it at her interview, but neither raised this conflict during the interview.

A further implication to this case may have repercussions beyond religion-based Title VII claims. The Tenth Circuit relied on its prior precedent stating the elements of a prima facie case of failure to accommodate, using the burden shifting framework created by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Finding that it had previously defined the McDonnell Douglas elements in this type of case to include evidence the applicant “informed his or her employer of this [religious]  belief, the court found itself bound to rule for Abercrombie, because there was no evidence the applicant so informed Abercrombie. Abercrombie & Fitch, 731 F.3d at 1122. Both district and appellate courts routinely rely on a similar application of the specific formulation of elements articulated under McDonnell Douglas in prior cases, much as the Tenth Circuit did.

However, there is a tension between such strict application of prior formulations of the requisite elements, and Supreme Court cases following McDonnell Douglas. Specifically, the Supreme Court has more than once noted McDonnell Douglas “was never intended to be rigid, mechanized, or ritualistic.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). “The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (emphasis added).

This case may well lead the Court to revisit the extent to which the court must “modify the elements of a prima facie discrimination claim to fit the facts of a given case.” Stover v. Martinez, 382 F.3d 1064, 1077 (10th Cir. 2004). If it does so, subsequent decisions under all of Title VII, not to mention similar statutes such as the ADA and ADEA, may be affected.

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