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CAN A MUSLIM WOMAN WEARING A HIJAB BE DENIED EMPLOYMENT?

On October 2, 2014 the United States Supreme Court granted certiorari to hear the EEOC v. Abercrombie & Fitch Stores, Inc.. The case involved a Muslim woman who applied for a job at the Woodland Hills Mall location of Aberombie & Fitch in Tulsa, Oklahoma. During the interview she was wearing a hijab as part of her religious practice. The woman was denied employment due to her failure to fulfill the dress code and appearance requirements that Aberombie & Fitch has.

Under Title VII of the Civil Rights Act of 1964, it is an unlawful employment practice for an employer to refuse to hire, to discharge or change the terms of employment of an individual because of his or her religious beliefs.

With regards to dress code, the EEOC guidelines state that “if the dress code conflicts with an employee’s religious practices and the employee requests an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in undue hardship.”

The court in Adeyeye v. Heartland Sweeteners, LLC held that in order to prove a Title VII claim for failure to provide accommodations for religious beliefs, an employee must prove three things: “(1) the observance or practice conflicting with an employment requirement is religious in nature; (2) the employee called the religious observance or practice to [the] employer’s attention;” and (3) the religious observance or practice was the basis for [the employee’s] discharge or other discriminatory treatment.” The United States Supreme Court in United States v. Seeger provided a test for religion: “whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.”

The Tenth Circuit sided with Abercombie & Fitch, finding that an employer’s obligation to reasonably accommodate the individual’s religious practices arises only after an employee or prospective employee notifies the employer of his or her need for a religious accommodation. The EEOC is appealing the Tenth Circuit decision and asking the United States Supreme Court. Essentially, the issue is whether actual knowledge by the employer is needed or an assumption or correct belief is sufficient.

For its support, the EEOC declares that employers need “only enough information about an employee’s religious needs to permit the employer to understand the existence of a conflict between the employee’s religious practices and the employer’s job requirements.” Heller v. EBB Auto Co., 8 F.3d 1433, 1439 (9th Cir. 1993). By wearing the hijab to the interview Samantha Elauf provided enough information to Aberombie & Fitch’s representative to surmise that there was conflict between the applicant’s religious beliefs and the company’s policies.

This case will be heard by the United States Supreme Court early next year and a decision is expected by the early next summer.  If anyone feels that they have been discriminated in a similar manner, they should consult an employment attorney at their earliest convenience.

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