EEOC Requests Hearing En Banc of Abercrombie Hijab Ruling - Employment Law - U.S. Tenth Circuit
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EEOC Requests Hearing En Banc of Abercrombie Hijab Ruling

Abercrombie & Fitch, and it's company Hollister, have been involved in litigation around the country concerning its discriminating hiring and employment practices in the name of staying true to its "look policy," with women who wear the hijab bearing the brunt of the burden.

In October of this year, the Tenth Circuit adopted a stricter view of Title VII's notice requirements for religion-accommodation theory, holding that a claimant "must establish that they initially informed the employer that they engage in a particular practice for religious reasons and that they need an accommodation for the practice."

Factual Background

In 2008, Samantha Alauf applied to Abercrombie Kids, and was not hired because she wore a hijab, which was in violation against the rule against "caps" in Abercrombie's (now infamous) look policy. The next year, the EEOC filed a claim on her behalf against Abercrombie alleging violations of Title VII of the Civil Rights Act of 1964. The district court granted the EEOC's motion for summary judgment, and in a surprising move, the Tenth Circuit reversed, and ordered the district court to enter judgment in favor of Abercrombie.

Motion for Rehearing En Banc

Last week, the EEOC filed a petition for rehearing en banc, citing three arguments: (1) the split among the circuits, where the Tenth Circuit is the only one to adopt a "particularized, actual knowledge" notice standard; (2) the Supreme Court and Tenth Circuit's precedent favor a flexible notice requirement to make a prima facie case; and (3) the Tenth Circuit's precedent conflicts with the current decision. Quoting heavily from Judge Ebel's dissenting opinion, the EEOC makes convincing arguments.

Whether the motion for rehearing en banc will be granted remains to be seen. However, based on the EEOC's determination on this issue, we wouldn't be surprised if they petition for writ of certiorari if the rehearing en banc is denied.

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