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Lots of Amici Join EEOC in Abercrombie Religious Discrimination Case

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By Mark Wilson, Esq. on December 17, 2014 2:15 PM

In October 2013, the Tenth Circuit determined that Abercrombie & Fitch, the nation's No. 1 purveyor of that weird cologne smell in the mall, didn't violate Title VII of the Civil Rights Act when it refused to hire a Muslim job applicant for wearing a hijab in contravention of Abercrombie's dress code.

The EEOC has since been granted a cert. petition, and filed its opening brief earlier this month. The case has garnered a whole heck of a lot of amici including religious organizations, the Lambda Legal foundation, and the State of Arizona, for some reason.

Actual Notice Is Sort of a Problem

The Tenth Circuit granted summary judgment in favor of Abercrombie because Samantha Elauf, the harmed job applicant, never told Abercrombie that she wore a hijab for religious reasons, meaning Abercrombie wasn't on notice that it had to provide an accommodation for religious reasons.

The EEOC, which brought the case against Abercrombie as a Title VII compliance action, said in its petition that the Tenth Circuit got the law wrong and was at odds with four other circuit courts of appeal, which don't require actual notice, but 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," in the Ninth Circuit's formulation.

This case, said the EEOC, has a pretty clear factual record: Abercrombie refused to hire Elauf specifically because her hijab would be incompatible with its dress code, which doesn't allow hats or headwear.

Everyone's on the Bandwagon

All of the amici so far have been on the EEOC's side. Remember Arizona? Well, it's joined by Hawaii, Illinois, Maryland, Montana, New Hampshire, New York, Oregon, and Washington state, all of which believe that the Tenth Circuit's direct notice requirement shouldn't apply to job applicants, at least, because they don't know what things an employer prohibits. They haven't been hired yet. "[T]he Tenth Circuit's prima facie test allows employers to engage in religious discrimination unless the applicant uses the interview as an opportunity to recite a laundry list of the religious practices to which the applicant adheres."

Similarly, the brief of "Fifteen Religious and Civil Rights Organizations" argues that the strict notice requirement doesn't make sense: "How is an applicant supposed to identify every 'particularized' work-religion conflict that might arise during an employment relationship that has not even yet begun?"

The Court is at once protective of religious liberty and deferential to employers. As far as this case goes, it seems like it could be a toss-up.

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