Working Together

Sometime next year the United States Supreme Court will decide whether a job interviewer had an obligation to inform an applicant that the interviewer has noticed that the applicant is wearing a headscarf. Put another way, on the issue of an employer’s duty to accommodate an article of clothing worn as a religious practice, does the interviewer have to ask, or does the applicant have to tell?

The issue arose when an interviewer for the Abercrombie and Fitch clothing chain met with an applicant who was wearing a black “hijab,” or headscarf, which is defined as a veil or head covering worn by some Muslim women in public. Abercrombie and Fitch, once an upscale sporting goods purveyor, has for some years been a clothing retailer of preppy and casual brands. Its stores present a consistent theme through music, displays and staff which is designed to appeal to its market niche. Employees are required to comply with a “Look Policy” which showcases the Abercrombie and Fitch brand, and a black headscarf did not comply with the Look Policy.

The applicant came to the interview wearing her headscarf (which for her was in fact a religious practice) but neither she nor the interviewer ever mentioned it. The interviewer surmised that the applicant was a Muslim, but did not ask, and in fact had been instructed as an interviewing technique not to ask applicants about their religion. Nor did the applicant ask about a dress code. The interviewer recommended hire, but was overruled by the manager, who thought that the black headscarf was inconsistent with the Look Policy.

Under Title VII, employers generally have a duty to accommodate religious practices if the accommodation is reasonable and not unduly burdensome. The Equal Employment Opportunity Commission brought suit on behalf of the applicant, claiming a violation of Title VII, not because the Look Policy was necessarily illegal (it may not be, as employers have the right to impose reasonable dress codes), but because Abercrombie and Fitch did not even attempt to discuss possible accommodations.

The EEOC won the case at trial, but the Court of Appeals reversed, holding that it was the applicant’s responsibility to identify her hijab as a religious practice (as opposed to a cultural symbol or simply her own fashion statement), and to request accommodation. The EEOC then petitioned the U.S. Supreme Court, which agreed to hear the appeal and decide whether Abercrombie and Fitch was on notice that the applicant wore a headscarf which was probably a religious practice and therefore had to ask the applicant about it and find out if there was a possible accommodation, or whether it was the applicant who had the obligation to inform Abercrombie and Fitch that she felt religiously obliged to wear it, and ask if there could be an accommodation.

We will not try to predict how the Supreme Court will eventually rule, but a critical element of the case that is instructive for employers right now is that the Abercrombie and Fitch interviewer did not discuss the New Look policy and did not let the applicant know that their dress code could be a factor in the hiring decision. Not knowing about the dress code, it may not have occurred to the applicant that there was any need to bring up her religious practice. As a general proposition, employers should not shy away from discussing the obvious with job applicants. Just as discrimination laws do not prevent an employer hiring for a job involving manual labor from asking an applicant in a wheelchair about his ability to perform essential job functions, so an employer hiring for a job with a dress code can and should ask an applicant (who presumably has come to the interview dressed to impress) about an article of clothing which would seem to have a religious connotation. Little did the Abercrombie and Fitch interviewer know that when she hesitated to tell the applicant, “I notice you’re wearing a headscarf,” she was starting her company down a road that would lead to the Supreme Court.