Last year, we reported on a decision from a federal judge in San Francisco granting summary judgment to the Equal Employment Opportunity Commission (EEOC) in a case brought on behalf of a former Abercrombie & Fitch employee who was fired for wearing a hijab (a Muslim headdress for women) at work. The judge in that case found that Abercrombie’s “Look Policy” was invalid insofar as it prohibited the employee from wearing a hijab and that Abercrombie’s belief that her dress would affect store performance or brand image was an “unsubstantiated opinion” that was not supported by hard evidence.
Today, the United States Supreme Court announced that Abercrombie’s “Look Policy” would be the subject of a case it will hear this Term on the rights of employees to religious accommodations at work. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., a federal judge in Oklahoma granted summary judgment to the EEOC on behalf of a then-17 year old Muslim applicant who wore a hijab to the interview. On appeal, a split panel of the U.S. Court of Appeals for the Tenth Circuit reversed the lower court, finding that although the applicant, Samantha Elauf, wore a hijab to the interview, there was no evidence that Abercrombie knew she would need to wear one at work. The issue in this case is whether an employment applicant needs to provide actual notice of that requirement to a potential employer or whether some other indirect, or constructive, form of notice will suffice to trigger an employer’s duty to determine if there is a reasonable accommodation for the employee’s religious observance. A decision is expected in the first half of 2015.