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Friday, June 5, 2015

Mind Reading Required of Employers

By: Tommy Eden

Abercrombie Kids, a division of national clothing retail giant Abercrombie & Fitch, refused to hire Samantha Elauf, a 17-year-old Muslim girl, in June 2008 for a position at its store in Woodland Hills Mall in Tulsa, Okla., because she was wearing the hijab when she was interviewed and this violated the company’s “look policy.”  The “look policy” prohibited the wearing of any head coverings.  Abercrombie claimed that she never told the hiring manager that she was seeking a religious accommodation to wear her headscarf at work, and additionally allowing Samantha to wear a hijab would cause an undue burden on the conduct of its business.  Samantha claimed to be a typical American teenager who has a sincere religious belief that she must wear a headscarf.

The U.S. Equal Employment Opportunity Commission (EEOC) then gave Abercrombie Kids policy “the look” and charged that it failed to hire Samantha for a sales position because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.  Abercrombie Kids had previously allowed numerous exceptions to its “look policy,” including eight or nine head scarf exceptions. Suit was filed in EEOC v. Abercrombie & Fitch Stores, Inc under Title VII of the Civil Rights Act of 1964, as amended, which protects workers from discrimination based upon religion.  Title VII requires employers to provide reasonable accommodations for the religious practices of its applicants and employees when to do so would not be an undue hardship.

Last week the United States Supreme Court decided that Samantha did not have to ask for a religious accommodation or show "actual knowledge" by the hiring employer of the need for an accommodation, but only that the employer had an  "unsubstantiated suspicion" that an accommodation would be necessary just by looking at her. The Court made a distinction between motives and knowledge holding that Title VII’s intentional discrimination prevision prohibits certain motives, regardless of knowledge.

Common Sense Counsel: Carnack the Magnificent (famous Johnny Carson role) would be the absolute perfect HR manager in this case knowing what is in the mind of the applicant. Train your hiring managers not to speculate on an accommodation issue- especially not in writing.

A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion. An employer might accommodate an employee's religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps, or modification of grooming requirements. Religious discrimination is a hot button issue for the EEOC. Have a well drafted employee handbook, job description, grooming policy and be in an “accommodating” mood when approached by your headscarf , Christian Cross, Star of David, skull cap, turban, wearing employee or an applicant.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter tommyeden3