On December 10, 2014, NELA joined the General Conference of the Seventh-day Adventists and other religious and civil rights organizations to file an amicus brief supporting Petitioner EEOC in the case of EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 14-86, pending in the U.S. Supreme Court. The question presented is whether an employer can be liable under the religious accommodation provision of Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee. This case provides the Supreme Court with the opportunity to clarify the knowledge and notice requirements for religious accommodations under Title VII.
At the district court, the EEOC was granted summary judgment on its claims that Abercrombie violated Title VII by failing to provide a religious accommodation to a female applicant who wore a hijab or head scarf to an interview and declining to hire her. After a trial limited to damages, a jury awarded $20,000 in compensation. The U.S. Court of Appeals for the Tenth Circuit reversed, instructing the district court to enter summary judgment in favor of Abercrombie on remand. In a 93-page opinion, containing a strong dissent, the majority held that summary judgment should be granted for defendant because the applicant neither informed Abercrombie that she wore her hijab for religious reasons nor needed an accommodation because that practice conflicted with its clothing policy. The hiring manager assumed the applicant was Muslim and wore a hijab for that reason. The applicant was never made aware of any conflict between Abercrombie’s clothing policy and wearing a hijab. The district court decision is reported at 798 F. Supp.2d 1272; the opinion of the court of appeals is at 731 F.3d 1106.
A year ago in December 2013 at the EEOC’s request, NELA filed an amicus brief, in the Tenth Circuit supporting the EEOC’s petition for rehearing en banc, which was denied. NELA’s amicus brief focused on the import of the Tenth Circuit’s decision regarding reasonable accommodation under the Americans with Disabilities Act (ADA). It argued that the majority opinion may affect ADA cases because the majority relied on accommodation standards taken from the interactive process required by the ADA. NELA contended that the panel decision conflicted with circuit precedent holding that a request for accommodation can be obvious or made by persons other than the one needing the accommodation.
The amicus brief filed in the Supreme Court traces the origin of Title VII’s religious accommodation provision, which was added by amendment in 1972 when Congress reacted to judicial decisions narrowly construing the general prohibition against religious discrimination in the statute. The brief describes how the “actual knowledge” requirement created by the Tenth Circuit is contrary to Congressional intent and the statute’s plain language. The brief urges that EEOC regulations regarding notice be given deference and argues that scienter is not required by the statute. The brief also contends that mandating that the religious observance be “required” by the faith is inconsistent with Title VII’s purpose and language.
The amicus brief was drafted by NELA member Todd R. McFarland, Associate General Counsel of the General Conference of Seventh-day Adventists, and Gene C. Schaerr, Law Offices of Gene Schaerr. The case is set for oral argument on February 24, 2015.