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Supreme Court backs EEOC in headscarf case

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In a decision that’s likely to leave employers wishing they were mind-readers, the U.S. Supreme Court has ruled 8-1 in favor of the EEOC in a case that pitted fashion retailer Abercrombie & Fitch against an Oklahoma teenager who wasn’t hired after wearing a Muslim headscarf to a job interview.

The case—EEOC v. Abercrombie & Fitch—asked whether Title VII requires a job applicant to specifically request a religious accommodation before an employer can be held liable for having a dress code that prohibits religious attire or grooming practices.

The Supreme Court said no.

Writing for the Court’s majority, Justice Antonin Scalia stated, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement.”

Samantha Elauf was 17 in 2008 when she applied for a sales job at an Abercrombie & Fitch store. She wore a hijab, which many Muslim women believe their faith requires, to a job interview. However, she never specifically said she wanted a religious accommodation allowing her to wear a scarf on the job. Abercrombie declined to hire Elauf because wearing a hijab violated a “look policy” sales staff must follow.

In 2013, the 10th Circuit Court of Appeals reversed a district court ruling that Abercrombie & Fitch violated Title VII. That set up the Supreme Court challenge.

“This case dramatically changes the standards that apply to employers because it removes the requirement that an employee or applicant request a religious accommodation, if the employer’s motive is later deemed a violation of Title VII,” said employment lawyer Michael Droke of the Dorsey and Whitney law firm.

“The Abercrombie decision reinforces the importance of manager training, to the lowest level supervisor,” Droke said—especially in large organizations like Abercrombie, where local managers make most hiring decisions.

Advice: Take your cue from Justice Samuel Alito, who during oral arguments in March suggested that employers should have a simple conversation with applicants, spelling out dress code requirements. Then, he offered, “Just say, do you have any problem with that?”

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