The Association joined with the National Conference of State Legislatures, National League of Cities, United States Conference of Mayors, National Association of Counties, International City/County Management Association, International Municipal Lawyers Association, National Public Employer Labor Relations Association and the National School Boards Association in filing an amicus curiae brief in the case of EEOC v. Abercrombie and Fitch Stores, Inc., which has been accepted for review by the US Supreme Court.
The question the Supreme Court will decide in this case is: who must ask about the need for a religious accommodation—the employer or the employee/applicant? Our brief argues the employee/applicant should ask.
Abercrombie & Fitch’s “Look Policy” requires sale-floor employees to wear clothing consistent with what Abercrombie sells in it stores and prohibits headwear. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. Her interviewer assumed but did not ask if she were Muslim and wore the headscarf for religious reasons. Ms. Elauf was ultimately not hired because of the headscarf. The Equal Employment Opportunity Commission (EEOC) sued Abercrombie alleging it violated Title VII by failing to accommodate Ms. Elauf’s religious beliefs. At trial, EEOC’s expert testified that some women wear headscarves for cultural rather than religious reasons.
The Tenth Circuit held in favor of Abercrombie, finding that an applicant/employee “ordinarily must establish that he or she initially informed the employer that [he or she] adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice,” which Ms. Elauf did not do.
The amicus brief argues that the applicant/employee should have to notify the employer of the need for a religious accommodation. Until this case, that had been the EEOC’s position. A contrary position requires employers to make assumptions based on stereotypes about what physical characteristics indicate a person might practice a particular religion. Requiring employers to ask about an employee’s religion to avoid a failure to accommodate claim may lead to employers being liable for a disparate treatment claim. EEOC guidance says that an employer asking about a protected characteristic like religion may be used as evidence of discrimination in a disparate treatment case.
The brief recommends that the Supreme Court adopt a rule similar to the rule in cases brought under the Americans with Disabilities Act (ADA) so that at the interview stage, employers should not inquire about an applicant’s religion. Upon being asked either at the interview or upon being hired about necessary accommodations, the employer needs to offer reasonable accommodations that do not pose an undue hardship on its business operations. By so holding, the brief notes that the Supreme Court will “provide a workable standard for employers and employees alike that is consistent with current employer best practices and avoids needless stereotyping in the workplace.”
The case is scheduled for oral argument on February 25th.
For more details on the brief, please contact Neil Reichenberg at firstname.lastname@example.org.
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