Tenth Circuit Commands Explicit Notice for Religious Accommodation Claims | Practical Law

Tenth Circuit Commands Explicit Notice for Religious Accommodation Claims | Practical Law

In EEOC v. Abercrombie & Fitch Stores, Inc. the US Court of Appeals for the Tenth Circuit reversed the district court's grant of summary judgment in favor of the Equal Employment Opportunity Commission (EEOC) and held that an employer's duty to provide a religious accommodation is not triggered unless or until an employee or applicant provides explicit notice of a need for one.

Tenth Circuit Commands Explicit Notice for Religious Accommodation Claims

Practical Law Legal Update 9-544-4931 (Approx. 5 pages)

Tenth Circuit Commands Explicit Notice for Religious Accommodation Claims

by Practical Law Labor & Employment
Published on 03 Oct 2013 • USA (National/Federal)
In EEOC v. Abercrombie & Fitch Stores, Inc. the US Court of Appeals for the Tenth Circuit reversed the district court's grant of summary judgment in favor of the Equal Employment Opportunity Commission (EEOC) and held that an employer's duty to provide a religious accommodation is not triggered unless or until an employee or applicant provides explicit notice of a need for one.
In its October 1, 2013 opinion in EEOC v. Abercrombie & Fitch Stores, Inc., the US Court of Appeals for the Tenth Circuit held that an employee or applicant must provide explicit notice of a need for a religious accommodation. A plaintiff must establish that the employer had actual knowledge that its policy or practice conflicted with the plaintiff's religious belief, and that the plaintiff explicitly requested a need for an accommodation before an employer can be held liable under Title VII.
The Tenth Circuit reversed the district court's decision granting summary judgment in favor of the EEOC for Abercrombie's failure to provide a religious accommodation to Ms. Elauf, who was not hired after she wore a headscarf to her interview. Neither Ms. Elauf nor the interviewer discussed Ms. Elauf's headscarf during her interview, but Abercrombie refused to hire her because her headscarf did not comply with its Look Policy.
To make a prima facie case of a religious accommodation claim, the plaintiff must prove that she:
  • Has a bona fide religious belief that conflicts with an employment requirement.
  • Informed the employer of this belief.
  • Was fired (or not hired) for failure to comply with the conflicting employment requirement.
The Tenth Circuit held that the EEOC failed to make a prima facie case because Ms. Elauf did not give sufficient notice of her need for an accommodation. Specifically, Ms. Elauf did not explicitly inform Abercrombie that she wears her headscarf for religious reasons and that she needed an accommodation of its Look Policy.
In placing the onus on the employee to notify the employer about the need for a religious accommodation, the court:
  • Relied on lower court precedent in Thomas v. National Ass'n of Letter Carriers and Toledo v. Nobel-Sysco, Inc., which placed the burden on the employee to notify the employer.
  • Looked to the EEOC's own regulatory pronouncements which obligate the employee or applicant to notify the employer about a need for an accommodation.
  • Rejected the EEOC's Auer v. Robbins defense, which ordinarily calls for deference to an agency's interpretation of its own ambiguous regulations. The court found that the regulation is not ambiguous, and even if it were, the agency has not provided adequate notice to employers that its duty to accommodate may be triggered even when an employee has not given explicit notice to the employer.
  • Joined the US Courts of Appeals for the Third, Fourth, Seventh and Eighth Circuits which have held that assumptions or even knowledge of an employee's religious belief is not sufficient notice to trigger an employer's duty to accommodate.
Since employers are affirmatively discouraged from making assumptions or discussing religion with employees or applicants, the court reasoned that it would be illogical to require employers to provide accommodations without an explicit request. The court instructs that plain language may be used in making such a request, but the employee must provide enough information to make the employer aware of the conflict between the employer's policy and the employee's religious practice or belief, as well as the need for an accommodation.
This holding conflicts with the US Court of Appeals for the Eleventh Circuit which held in Dixon v. The Hallmark Companies, Inc. that an employer's awareness of tension between an employee's religious beliefs and its policy was sufficient to put the employer on notice. Therefore, it is likely that this is not the last EEOC case we will see about notice requirements for religious accommodations. However, employers should be aware of the different standards, and those in the Tenth Circuit can feel a little more at ease given the higher hurdle an employee or applicant has in successfully bringing claims for religious accommodations.
Court documents: