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Supreme Court to Take up A&F Employment Discrimination Case

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Can employees bring a religious discrimination lawsuit due to an employer’s failure to accommodate religious practices if the need for the accommodation is obvious, but the employee did not explicitly request one? That is the issue the U.S. Supreme Court announced last week it would soon consider in a case involving a Muslim woman denied employment by Abercrombie & Fitch because she wore a religious headscarf. The case, EEOC v. Abercrombie & Fitch Stores, Inc., has the potential to be one of the most important of the year for employment lawyers who handle religious discrimination cases.


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Federal employment discrimination law makes it illegal to discriminate against employees or applicants in hiring, firing, and other terms and conditions of employment on the basis of religion. The law requires employers to accommodate an employee’s or applicant’s “religious observance and practice” unless the employer shows it cannot reasonably make the accommodation without “undue hardship” on the business.

Clothing retailer Abercrombie & Fitch has a dress code for its sales employees, which it calls its “Look Policy.” The Policy is intended to convey a “classic East Coast collegiate style of clothing.” Among other things, the Policy prohibits employees from wearing “caps.” A&F management has interpreted the Policy to ban religious headscarves. Over the past few years, several lawsuits have been brought against A&F, alleging that its dress code discriminates against Muslim women by prohibiting them from wearing a religious headscarf, known as a hijab. We have previously written about one of those employment discrimination lawsuits, here.

At issue in the case recently accepted by the Supreme Court is whether an employee or applicant must make an explicit, verbal request for a religious accommodation, or whether it is enough that the employer knew from the facts and circumstances that one was needed. Put differently, is an employer required to make an accommodation if it knows one is necessary (and can be reasonably made without undue burden), or must the employee first use certain “magic words” to request an accommodation. Several Courts of Appeal have held that no magic words are necessary if the employer has enough information to know an accommodation is necessary. In the A&F case, however, the Court of Appeals held the opposite. The Supreme Court will now resolve the conflict.

Regardless of how the A&F case turns out, employees and employers should know that reasonable changes to workplace policies and rules may be required to accommodate the religious practices of employees. If you feel you may be a victim of religious discrimination in the workplace, contact an experienced Cleveland employment lawyer right away.

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About Matthew Besser

Matthew D. Besser defends the rights of individuals in employment discrimination, civil rights, and constitutional law cases.

Matt is a former federal appellate law clerk, and an adjunct law professor at Case Western Reserve University. He is also a frequently invited speaker on an array of legal topics. Recognized for his accomplishments in the legal field, Matt holds the prestigious Martindale-Hubbell “AV Preeminent”® rating. Twice, U.S. News and World Reports has named him to its list of Cleveland employment law “Best Lawyers.” And Super Lawyers Magazine has named him a “Super Lawyer” for employment law in Cleveland four times. Twice before that, the Magazine named him one of its “Rising Stars.”

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