C ivil R ights L aw

Is an Employer Liable Under Title VII of the Civil Rights Act Only If the Employer
Has Actual Knowledge of the Need for a Religious Accommodation
Based on Direct Notice from an Applicant or Employee?
CASE AT A GLANCE
The Equal Employment Opportunity Commission (EEOC) filed a complaint against Abercrombie & Fitch
Stores, Inc. (Abercrombie), alleging Abercrombie violated Title VII of the Civil Rights Act of 1964 when it
failed to hire Samantha Elauf, a Muslim who wears a hijab as a symbol of her faith. The United States
District Court for the Northern District of Oklahoma granted partial summary judgment to the EEOC
as to liability. After a jury trial limited to the question of damages, the jury granted $20,000 to Elauf in
compensatory damages. The Tenth Circuit Court of Appeals reversed the ruling of the district court and
granted summary judgment to Abercrombie, with Judge Ebel dissenting in part. The government filed a
successful petition for certiorari. There is a circuit split on the question between the Tenth Circuit and the
Seventh, Eighth, Ninth, and Eleventh Circuits.

Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.

Docket No. 14-86
Argument Date: February 25, 2015
From: The Tenth Circuit
by Rachel K. Paulose

ISSUE
Under Title VII of the Civil Rights Act of 1964, should an employer
be held liable for discrimination based on a religious observance
and practice if the employer fails to hire an applicant or terminates
an employee only if the applicant or employee provides direct
and explicit notice to the employer of the need for a religious
accommodation?

FACTS
This case arises out of Abercrombies employee dress code
requirements. Abercrombie utilizes what it terms a Look Policy,
obliging employees to dress in clothes consistent with Abercrombies
fashion forward image. Among other things, the Look Policy bans
caps and any black clothing. Employees may face disciplinary
action, including termination, as a consequence of violating the
Look Policy.
On June 25, 2008, Samantha Elauf, who was 17 at the time, applied
for a position as a sales associate at an Abercrombie Kids store in
Tulsa, Oklahoma. Elauf, who is Muslim, wore a black head scarf to
her interview the next day with assistant store manager Heather
Cooke. During her interview, Elauf did not discuss her belief that
she considers her hijab to be a symbol of her faith. Elauf was
unaware of the Look Policy. However, Elauf admitted she understood
Abercrombie banned black clothing.

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Abercrombie asserts that Cooke generally described the Look Policy

instructing that employees must wear clothing that looked like
Abercrombie. Cooke did not ask Elauf about her head scarf or
specifically tell Elauf that Abercrombie banned head scarves and
black clothing. However, Cooke testified that she assumed Elauf
wore a head scarf for religious reasons because she was Muslim.
Cooke initially recommended Elauf for the job in a written rating
sheet. However, after consulting with her district manager, Cooke
testified she downgraded Elaufs written rating and declined to hire
Elauf. Cooke testified her district manager told her not to hire Elauf
because Elauf wore a head scarf inconsistent with Abercrombies
Look Policy. No one at Abercrombie consulted amongst themselves
or with Elauf about whether Abercrombie could accommodate what
Cooke perceived to be Elaufs religious practice.
Abercrombie executives consistently testified they believed
that granting exceptions to the Look Policy negatively impacted
Abercrombies image, brand, and sales. However, Abercrombies
Vice President of Human Resources testified that Abercrombie now
permits employees to wear head scarves and has granted at least
eight such exceptions nationwide.
Cooke did not contact Elauf again. Nor did Elauf contact
Abercrombie. Elauf learned from a friend who worked with Cooke
that Cooke declined to hire Elauf because Elauf wore a hijab.

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On September 17, 2009, the EEOC filed a complaint against

Abercrombie, asserting religious discrimination.
Before the United States District Court for the Northern District
of Oklahoma, Abercrombie and the EEOC both sought summary
judgment.
On July 1, 2011, the district court granted summary judgment for the
EEOC. Using the burden shifting principles set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the district court found
that the EEOC had established a prima facie violation of Title VII.
Title VII of the Civil Rights Act of 1964 provides in relevant part:
Unlawful employment practices
(a) Employer practices
It shall be an unlawful employment practice for an
employer
(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individuals
race, color, religion, sex, or national origin.
42 U.S.C. 2000e-2
The statute defines religion as encompassing all aspects of
religious observance and practice, as well as belief, unless
an employer demonstrates that he is unable to reasonably
accommodate to an employees or prospective employees religious
observance or practice without undue hardship on the conduct of
the employers business.
29 C.F.R. 1605.2 provides in relevant part:
Reasonable accommodation without undue hardship
as required by section 701(j) of title VII of the Civil
Rights Act of 1964.
(b) Duty to accommodate. (1) Section 701(j) makes it
an unlawful employment practice under section 703(a)
(1) for an employer to fail to reasonably accommodate
the religious practices of any employee or prospective
employee, unless the employer demonstrates that
accommodation would result in undue hardship on the
conduct of its business.
(c) Reasonable accommodation. (1) After an employee
or prospective employee notifies the employer or
labor organization of his or her need for a religious
accommodation, the employer or labor organization has
an obligation to reasonably accommodate the individuals
religious practices. A refusal to accommodate is justified
only when an employer or labor organization can
demonstrate that an undue hardship would in fact
result for each available alternative method of
accommodation.

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The district court rejected all Abercrombies arguments protesting

it did not violate Title VII and arguing it actually was entitled to
summary judgment.
First, Abercrombie denied Elauf wore a head scarf based on a bona
fide religious belief. Abercrombie insisted Elauf wore the hijab for
cultural reasons because it claimed the Quran did not mandate
hijabs. Although Elauf agreed the Quran does not explicitly require
women to wear hijabs, the district court determined the statute
did not require a textual basis for religious beliefs. Declining to
interpret the tenets of any specific religion, the court found it
sufficient that Elauf wore a head scarf based on her interpretation of
the Qurans teachings of female sartorial modesty.
Second, Abercrombie challenged Elaufs regularity of religious
discipline and suggested her beliefs were not sincerely held. The
district court declined to judge the depth of Elaufs faith, and instead
found it sufficient that she wore a hijab based on her sincerely held
belief that she was required to do so under the teachings of her
faith.
Third, Abercrombie asserted it had no actual notice that Elauf wore
the hijab because of her religious beliefs. Abercrombie argued
the court unfairly imposed a constructive notice standard. The
court interpreted Title VII to require an interactive process. Here,
however, the district court asserted Abercrombie cut short that
interactive process by declining to hire her without telling Elauf why
it denied her application, after its hiring official assumed Elauf wore
a hijab for religious reasons.
Fourth, Abercrombie asserted granting Elauf an exception would
result in undue hardship by negatively impacting its brand, citing
an expert opinion. The court deemed this argument specious in
light of Abercrombies failure to produce data that its brand was
negatively impacted by granting exceptions to its Look Policy and
its intermittent exceptions permitting employees to wear head
coverings.
The district court found that Elauf wore a hijab based on
her religious beliefs; Elaufs religious beliefs conflicted with
Abercrombies prohibition on headwear; Abercrombie had notice
that Elauf wore her hijab as a religious practice; and Abercrombie
refused to hire Elauf because Elaufs religious practice conflicted
with Abercrombies Look Policy.
The court allowed a jury trial limited to the question of damages.
The jury ultimately awarded Elauf $20,000 in compensatory
damages.
Abercrombie appealed to the federal appellate court. On October 1,
2013, a divided panel of the United States Court of Appeals for the
Tenth Circuit reversed the district court decision granting the EEOC
summary judgment. Further, the appellate court granted summary
judgment for Abercrombie. Critically, the Tenth Circuit found that
Abercrombie did not have actual notice from Elauf that she wore a
head scarf because of her religious beliefs. The Court held:
Abercrombie is entitled to summary judgment as a matter
of law because there is no genuine dispute of material
fact that Ms. Elauf never informed Abercrombie prior to its
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hiring decision that she wore her headscarf or hijab for

religious reasons and that she needed an accommodation
for that practice, due to a conflict between the practice and
Abercrombies clothing policy.
The appellate court noted that the EEOC cautions employers
from inquiring about an applicants religious beliefs or making
assumptions about religious practices because religious beliefs
are generally viewed as non job-related and problematic under
federal law. The court found it important that even the EEOC
encouraged employers to engage in an interactive dialogue with an
applicant only after the employer was put on notice of the need for a
religious accommodation. Here, the court said, while Abercrombies
agent made an assumption about Elaufs religious practice, that
assumption was not based on actual notice Elauf herself should
have provided.
Judge Ebel concurred in part and dissented in part, writing that
on the record presented, neither party was entitled to summary
judgment. Instead, he decried the lack of common sense employed
in deciding a case in which the record suggested Abercrombie
preempted an interactive dialogue by failing to inform Elauf of its
presumptive reason for denying her employment application. The
appellate court thus unfairly imposed on Elauf a burden to request
a religious accommodation when Elauf was not explicitly aware
of Abercrombies Look Policy. Judge Ebel would have remanded
the case for a jury trial because there are factual disputes as to
whether the circumstances presented here triggered Abercrombies
duty to initiate an interactive dialogue with Elauf in order to
determine whether she had a religious practice that conflicted with
Abercrombies Look Policy.
The federal appellate court denied a petition for rehearing en banc
on February 26, 2014, by an evenly divided vote.
The circuits are split on the question. The Tenth Circuit adheres to
a strict actual notice requirement from the employee or applicant,
while the Seventh, Eighth, Ninth, and Eleventh Circuit impose
liability if an employer possesses constructive knowledge of a
possible conflict.
The EEOC filed a petition for certiorari on July 25, 2014. The
Supreme Court granted certiorari on October 2, 2014.

CASE ANALYSIS
The United States argues that the judgment of the Tenth Circuit
should be reversed because the plain language of Title VII
prohibits employers from hiring discrimination whenever the
employer declines to hire an applicant based on what the employer
correctly perceives to be an applicants religious practice, unless
accommodating the religious practice would pose an undue
hardship to the employer. The government argues Abercrombie
intentionally discriminated against Elauf when it correctly perceived
she wore a hijab as a part of her religious faith and refused to
hire her because of that religious expression. This intentional
discrimination goes to the core conduct Congress prohibited
under Title VII, asserts the government. The government also
argues that an employer acts with discriminatory intent when it
discriminates based on a protected attribute, even when acting

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without animus. This is because protected attributes are unrelated

to merit and should not be bases for hiring decisions.
Abercrombie disputes that it engaged in intentional discrimination
when it enforced a religion-neutral employment policy against
Elauf after its agent correctly assumed Elauf would not comply
with the policy based on her religious beliefs. Abercrombie first
distinguishes between two theories of discrimination: intentional
discrimination (disparate treatment) and adverse effect (disparate
impact). Compensatory and punitive damages, such as the jury
awarded Elauf in the case at hand, are only permitted in cases
of intentional discrimination. But the EEOC brought the case as
a failure to accommodate case, which Abercrombie argues can
never be an intentional discrimination case as a matter of law.
Abercrombie protests, the EEOCs argument is at war with basic
antidiscrimination law and makes a mess of a statute that Congress
crafted based on the well-recognized distinction between failure to
accommodate and intentional discrimination.
Further, Abercrombie denies that it intentionally discriminated
against Elauf when it declined to hire her because of her
noncompliance with Abercrombies religion-neutral dress code.
Abercrombie asserts it bans any type of headwear, regardless of
religious significance, and thus it did not discriminate against
the hijab-wearing Elauf. Abercrombie argues it had no intent to
specifically discriminate against Muslims and thus cannot be held
liable for intentional discrimination. Abercrombie claims Elaufs
true complaint is not that she was discriminated against, but
that she was not treated more favorably because of her religion.
Abercrombie argues that generally applicable policies that
incidentally burden religion are not a violation of Title VII.
The government denies that either the text of Title VII or prior case
law imposes upon Elauf a rigid notice requirement for religious
accommodation claims. The government claims the Tenth Circuit
conditions Title VII reasonable accommodation protections on action
by the victims of discrimination. The government claims such a
reading of Title VII empowers employers to discriminate in a variety
of circumstances, including when the employer receives knowledge
of a potential conflict from another employee, when the employer
draws inferences from the statements of the applicant or employee,
or when the employer observes acts by the applicant or employee
consistent with religious practices. In these situations, an employer
would be shielded from liability if it acted based on suppositions, not
direct notice from an employee or applicant. The government argues
such a result would undermine the heart of Title VII.
Abercrombie insists applicants or employees must ask for an
accommodation, citing the EEOCs own regulations and guidance
on the issue. This imposes a notice requirement upon applicants
or employees in reasonable accommodation cases. The EEOCs
Compliance Manual guides as follows:
An applicant or employee who seeks religious
accommodation must make the employer aware both of
the need for accommodation and that it is being requested
due to a conflict between religion and work. The employee
is obligated to explain the religious nature of the belief or
practice at issue, and cannot assume that the employer
will already know or understand it.

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After the Tenth Circuit issued its unfavorable decision, the EEOC
amended its Compliance Manual to require employers to provide
notice of workplace policies before applicants have a duty to request
accommodations. Abercrombie points to this modification as
evidence that the EEOC has reversed its own historical position on
the notice issue.
The government further argues that Title VIIs reasonable
accommodation requirements imposed a responsibility for
bilateral cooperation between employers and employees to reach
acceptable compromises between employers work requirements
and employees free exercise of faith. The government argues
Abercrombie preempted any dialogue by acting on its accurate
assumptions instead of initiating a dialogue with Elauf. The
government claims the Tenth Circuits ruling gives employers no
incentive to seek an interactive dialogue when they may simply
circumvent the law by claiming lack of actual knowledge based on
explicit notice from an employee who may or may not be aware
of a looming conflict. This lack of employer incentive may prove
particularly dangerous as to religious communities with distinctive
religious attire or other displays of faith.
Abercrombie argues the duty to initiate the interactive dialogue
rests with the employee, particularly where the conflict may be
definitely known only to the employee. Citing the regulation text
and EEOC guidance over the years, Abercrombie asserts any attempt
to place the burden on the employer is a reversal of long-standing
EEOC policy and should be rejected as unprecedented. Indeed, 29
C.F.R. 1605.2 imposes responsibility upon an employer after an
employee or prospective employee notifies the employer or labor
organization of his or her need for a religious accommodation,
(emphasis added).
The government disputes the appellate courts premise that job
applicants or employees have superior knowledge of any conflict
between employer rules and employee religious practices. The
government contends that while employees or applicants have
superior knowledge of their own religious practices, employers
have superior knowledge of their own workplace rules. In certain
situations, then, the employer will first identify religious conflicts
unbeknownst to applicants. The government asserts that is precisely
what happened here when Abercrombie identified a conflict
between its Look Policy and Elaufs religious practice. Abercrombie
then refused to hire Elauf because of that perceived conflict, instead
of initiating an interactive dialogue to seek a middle ground with
Elauf.
Abercrombie responds that employees are better suited to raise
a potential religious conflict. Abercrombie agrees that employees
will always have knowledge of their own religious practices,
and employers will always have knowledge of their workplace
policies. However, employees will sometimes know of possible
workplace policies, while Abercrombie argues employers will
never independently and definitively know of employees religious
practices, absent a direct statement from the employee. Thus,
in most cases, Abercrombie argues the employee has superior
knowledge. In this case, Abercrombie argues it was Elauf who had
superior knowledge: a friend told her of the Look Policy before her
interview, Cooke generally described the Look Policy during Elaufs
interview, and after the interview, a friend told Elauf she was not

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hired because of her noncompliance with the Look Policy. In this

situation, therefore, Abercrombie insists the burden to begin a
dialogue should have been Elaufs.
The government contends employers that suspect a possible
religious conflict can simply state their workplace rules and ask
whether applicants can fully comply. This method, the government
asserts, would protect employers from inquiring into sensitive areas
of religious practice.
Abercrombie responds that employers should be discouraged from
inquiring about anything that could be construed as religious
practice. Requiring them to do otherwise forces them to navigate
between Scylla and Charybdis, according to Abercrombie. The
governments position that employers must inquire of applicants or
employees when employers suspect a possible conflict between a
work policy and religion perpetuates the type of stereotyping Title
VII bans, asserts Abercrombie.
Further, Abercrombie argues the governments real complaint is that
employees and applicants are occasionally not told of the reasons
for adverse action. That is a policy argument against employment at
will, not a legal reason for imposing liability against Abercrombie in
this case.
The government contends the district court correctly granted the
EEOC summary judgment on the notice issue since Abercrombies
agent refused to hire Elauf because she correctly perceived Elauf
wore a head scarf for religious reasons. The government concedes,
however, that the appellate court did not consider whether the EEOC
was also entitled to summary judgment with respect to Elaufs bona
fide religious belief or Abercrombies undue hardship defense.
The government suggests the Court thus remand the case for
consideration of those two issues.
Abercrombie insists the Look Policy is a crucial aspect of its
brand and claims granting an exception would have resulted in
undue hardship. Abercrombie argues the district court erred in
relying on the absence of statistical proof of hardship when other
evidence supported Abercrombies undue burden defense. Further,
Abercrombie argues that even if the Court accepts the governments
legal theory and reverses the Tenth Circuits judgment granting
Abercrombie summary judgment, the Court should remand to
resolve factual disputes over the hiring officials actual knowledge of
Elaufs religious practices.

SIGNIFICANCE
The governments unusual request to remand unaddressed issues
back to the appellate court reflects that this case may not have been
an apt vehicle for summary judgment for either party, as Judge
Ebel wrote in dissent. Material facts as to who knew what when,
or perhaps rather who assumed what when, remain in doubt. Both
parties at some point before litigation commenced had reason to
doubt Elaufs ability to comply with the Look Policy and seek an
interactive dialogue. Neither did, taking their dispute straight to the
courthouse. Given Abercrombies accommodation of other requests
for modifications to its Look Policy, the lack of direct communication
in this case incentivized litigation when perhaps an accommodation
could have been reached.

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Who has superior knowledge of a possible conflict between an

applicants religious beliefs and a companys policies? The appellate
courts ruling assumes that the applicant always has superior
knowledge and interprets the law to place the initial responsibility
for resolving any potential conflict on the applicant. As the hotly
disputed facts of this case suggest, the applicant may not always be
the holder of superior knowledge.
Who bears the burden of initiating a dialogue as to any potential
religious conflict? The EEOC argues the burden should be on the
employer if it suspects a possible conflict, while Abercrombie argues
the text of the implementing regulation in failure to accommodate
cases places the initial responsibility squarely upon the employee
or applicant in every situation. As the facts of this case show, the
EEOCs position arguably invites religious stereotyping, while
Abercrombies position risks deliberate employer evasion of Title VII
by remaining silent as to its comprehensive policies or reasons for
termination.
Again, given the varying facts of each unique case, it is unlikely the
same party (whether employer or employee) is best situated to raise
the possibility of a conflict in every case.
The decision in this case will answer these important questions
about the differential in knowledge and power, while considering
the appropriate balance between the individuals right to religious
expression and the private markets right to regulate its own
workplace.

Rachel K. Paulose is a graduate of Yale Law School. Paulose

worked at Williams & Connolly LLP and served as a Senate
confirmed United States Attorney. She may be reached at
rkpaulose@hotmail.com.
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2015 American Bar Association.

ATTORNEYS FOR THE PARTIES

For Petitioner Equal Employment Opportunity Commission (Solicitor
General Donald B. Verrilli Jr., 202.514.2217)
For Respondent Abercrombie & Fitch Stores, Inc. (Shay Dvoretzky,
202.879.3939)

Brief for American Jewish Committee, Anti-Defamation League,

Jewish Council for Public Affairs, Jewish Social Policy Action
Network, Americans United for Separation of Church and State,
National Center for Lesbian Rights, Union for Reform Judaism,
Central Conference of American Rabbis, and Women of Reform
Judaism (David T. Goldberg, 212.334.8813)
Brief for Beckett Fund for Religious Liberty (Eric S. Baxter,
202.955.0095)
Brief for the Council on American-Islamic Relations(Jenifer Wicks,
202.488.8787)
Brief for Lambda Legal Defense and Education Fund, Inc. (Gregory
R. Nevins, 404.897.1880)
Brief for the National Jewish Commission on Law and Public
Affairs, Agudas Harabbanim, Agudath Israel of America, National
Council of Young Israel, Rabbinical Alliance of America, Rabbinical
Council of America, and the Union of Orthodox Congregations of
America(Nathan Lewin, 202.828.1000)
Brief for the States of Arizona, Hawaii, Illinois, Maryland, Montana,
New Hampshire, New York, Oregon, and Washington (Rose DalyRooney, 520.628.6756)
Brief for Umme-Hani Khan (Christopher Ho, 415.864.8848)
Brief of Fifteen Religious and Civil Rights Organizations (Greg C.
Schaerr, 202.361.1061)
In Support of Respondent Abercrombie & Fitch Stores, Inc.
CATO Institute (Brendan J. Morrissey, 202.719.7000)
Chamber of Commerce of the United States of America and the
National Federation of Independent Business Small Business Legal
Center (Melissa Arbus Sherry, 202.637.2200)
Equal Employment Advisory Council (Rae T. Vann, 202.629.5600)
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, International Public
Management Association for Human Resources, National Public
Employer Labor Relations Association, and National School Boards
Association (Charles W. Thompson Jr., 202.466.5424)

AMICUS BRIEFS
In Support of Petitioner Equal Employment Opportunity
Commission
Brief for American-Arab Anti-Discrimination Committee and Other
Organizations Supporting Civil Rights for American Muslims (Abed
A. Ayoub, 202.244.2990)

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