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SCOTUS hears arguments in Abercrombie headscarf case

Under Title VII of the 1964 Civil Rights Act, employers are expressly prohibited from engaging in discriminatory practices on the basis of race, color, sex, national origin and religion. Included in this prohibition against religious discrimination are both practices and observances to the extent that an employer can reasonably accommodate them without incurring undue hardship.

Interestingly, the issue of religious discrimination in the workplace was before the Supreme Court of the United States this week in EEOC v. Abercrombie & Fitch Stores, Inc., a case centered around the issue of whether a job applicant is required to request a religious accommodation or if the impetus is on the employer to make such inquiries.

According to the facts of the case, a 17-year-old girl applied for a position as a sales associate at an Abercrombie Kids store in the Tulsa, Oklahoma area back in 2008. A practicing Muslim, she wore her traditional black headscarf, known as a hijab, to her job interview.

While the girl appeared to satisfy the store's criteria for a sales position, her application ultimately stalled over her hijab, which was in direct conflict with Abercrombie's Look Policy, which dictated very exacting dress standards for sales personnel, including a ban on headscarves and anything in the color black.

While the assistant store manager correctly inferred that the girl wore the hijab for religious reasons, this fact was never expressly communicated to her. The assistant manager then consulted with a higher-up, and the decision was made not to hire her.

The Equal Employment Opportunity Commission ultimately filed a lawsuit on the girl's behalf challenging the policy, which Abercrombie has since changed to permit headscarves. She prevailed in federal court with a jury awarding her $20,000.

A federal appeals court reversed this decision, however, holding that the popular teen clothing chain couldn't be held liable as the girl had never asked for an exception to the headscarf rule, much like is required of those with disabilities under the Americans with Disabilities Act.

It will be interesting to see what the court ultimately decides in this case, which had oral arguments on Wednesday. Multiple religious organizations and civil rights groups have filed briefs in support of the girl, arguing that having to expressly ask for a religious dress exemption makes people less likely to be hired, while business groups have filed briefs in support of Abercrombie, arguing that to require employers to inquire about religion would expose them to more liability.

Stay tuned for updates …

Sources: USA Today, "Muslim's case takes 'look' at Abercrombie & Fitch policy," Richard Wolf, Feb. 24, 2015; CBS News, "Supreme Court weighs anti-Muslim claim against Abercrombie," Feb. 25, 2015

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