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In 2008 Samantha Elauf applied for a job at her local Abercrombie & Fitch clothing store in Tulsa, Oklahoma. During her interview Elauf, who is a practicing Muslim, wore a hijab or headscarf. Though her headscarf was clearly visible to the hiring manager who interviewed her, Elauf was never asked if she needed a religious accommodation as provided for by law. This is despite the fact that there is a company policy prohibiting the wearing of headwear by “models”—the in-house name for what are essentially sales associates, the position to which Elauf applied.

Though she initially received a high score from her interviewer, Elauf was denied the job after the hiring manager spoke with a district manager who said that the headwear was against company policy. After being denied the position, the Equal Employment Opportunity Commission (EEOC) filed a suit on her behalf alleging that Elauf was not hired as a result of her religion in a violation of Title VII of the Civil Rights Act of 1964 and subsequent amendments. While the EEOC prevailed on summary judgment and at trial on damages, the Tenth Circuit Court of Appeals reversed and held that because Elauf never explicitly informed her potential employer that she needed a religious accommodation, Abercrombie & Fitch was not liable for violating the statute. On February 25, the United States Supreme Court will hear oral arguments on this case, EEOC v. Abercrombie & Fitch Stores, Inc.

The precise question presented is “whether an employer can be liable under Title VII for refusing to hire an applicant… 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.” Put another way, the Supreme Court is asked to decide if the bar to liability is so high that an employer can be found liable for not accommodating a job applicant’s religious observance and practice only if they have actual and direct knowledge from the applicant or employee him- or herself that an accommodation is needed. To truly understand the potential ramifications of this case if the Tenth Circuit’s decision is upheld it is helpful to go back and examine the historical setting in which the statutory regime at issue became law.

After Title VII was passed and signed into law in 1964, creating the EEOC, a number of judicial decisions were issued in which the general prohibition of employment discrimination based on religion was narrowed. In essence, according to an amicus curiae brief filed by a number of religious and employee rights organizations, “those decisions held that in the employment setting, Title VII’s original prohibition on religion-based discrimination protected only religious belief, not religiously motivated conduct.” (Disclosure: the National Employment Lawyers Association, The Institute’s sister organization, signed on to this brief.) Congress determined that these decisions incorrectly narrowed the parameters of Title VII. As a result, the statute was amended in 1991 to clarify that “the Title VII prohibition on religious discrimination would clearly protect not only religious belief, but also religiously motivated conduct.” The wearing of a headscarf, like a yarmulke or a turban, is nothing if not religiously motivated conduct.

While ostensibly this case is about religious observance in the workplace, it is also about the power imbalance between employer and employee or applicant. The Tenth Circuit’s decision would require the employee or applicant inform the employer or potential employer of the work-religion conflict. In the case of an applicant, this would by definition be before the applicant even begins to work for the employer. As stated in the brief referenced above, this puts applicants with such a conflict at a grave disadvantage because they will likely “not learn about the pertinent work requirement unless and until the employer tells them.” It would require that job applicants—those who are almost always at a disadvantage in terms of workplace knowledge and bargaining power as between them and potential employers—who require religious accommodations to ask for the accommodation before beginning to work for the employer or being aware of the conflict. This is a nonsensical outcome.

Such a rule of law would lead to results in which the potential employee would be expected to know the specific work policies of a potential employer before even having the opportunity to become familiar with those policies, which often are laid out in employee handbooks that are distributed to employees after they are hired. As stated in the amicus brief, the Tenth Circuit’s holding by placing the burden on the applicant would lead to particularly absurd results where “an employer’s knowledge of its own business and resulting job requirements is vastly superior to that of the applicant.” In situations in which an employee or applicant is never made aware of the need for an accommodation “it is patently unfair to place on the applicant the burden of discerning and articulating the conflict.”