EEOC v. Abercrombie & Fitch: employers as mind-readers

The Supreme Court is considering the case of a woman who sued torrid-youth retailer Abercrombie & Fitch, saying it discriminated against her based on religious belief when it failed to waive its “Look Policy,” in which sales personnel are expected to wear only clothes sold by the store, to accommodate her modesty headscarf. Never mind whether this demand would be a reasonable one in itself; the case has gone up to the U.S. Supreme Court in large part because of a second issue, whether the store was legally obliged to grasp the situation intuitively as based on religion and pre-emptively accommodate Samantha Elauf “even though Elauf never informed them that she would need a religious accommodation.” A district court ruled that it was so obliged, the Tenth Circuit reversed, and now the Supreme Court is hearing the case at the EEOC’s request.

Requiring employers to offer a religious accommodation before they are on notice that one is sought requires them to act on “crude stereotypes or pry into employees’ personal lives,” write Ilya Shapiro and Julio Colomba. Not all employee requests on subjects such as modesty, diet, or weekend attendance are associated with religious affiliation and observance, while conversely many persons with genuine or sincere religious affiliation or belief do not conform to stereotypical expectations about what their religion might require of them in the workplace. Individual employees are thus “in a significantly better position to identify conflicts than employers.” The Cato Institute has filed an amicus brief on Abercrombie’s side arguing that the Court should reject the EEOC’s position as unworkable, unfair, and not required by the statute.

Related: Eugene Volokh has been posting on religious-exemption and religious-accommodation law at Volokh Conspiracy. For those who imagine, reading the Hobby Lobby and state-RFRA coverage, that religious exemptions have mostly been favored by conservatives over liberal opposition, he reminds us that the actual history is nearer the opposite. And he explains why his own view is that an optimal approach would include a mix of legislatively and judicially crafted (consistent with legislative wishes) religious exemptions and accommodations, but not necessarily a constitutional entitlement to accommodation.

4 Comments

  • Religious/conscience wavers are per-se absurd because religion is whatever a person says it is. “We have this rule, and you absolutely must follow it, unless you say you don’t want to.” To have a waiver based on “asking for a waiver” means the rule is not a rule.

    What if we had religious waivers for environmental regulations, and the CEO of Exxon said that it was his religion to spill oil into the ocean? What if a religious extremist insists that his religion commands him to kill infidels? It’s not just the scale that makes those comparisons absurd, it is the entire concept of religious waivers.

  • Attention: Quakers seeking to affirm rather than swear when testifying, Orthodox asking to keep their yarmulkes on in court, Mennonites asking to work in hospitals rather than carry arms in war, and Jehovah’s Witnesses wanting to be excused from the Pledge of Allegiance: you can just move on to some other country. This one is Mr. Sheil’s.

  • This case hardly requires the employer to be a mind-reader. The man who interviewed Elauf for the job — while she was wearing the headscarf — assumed, correctly, that she was doing so for religious reasons.

  • The Supreme Court is considering the case of a woman who sued torrid-youth retailer Abercrombie & Fitch, saying it discriminated against her based on religious belief when it failed to waive its “Look Policy,” in which sales personnel are expected to wear only clothes sold by the store, to accommodate her modesty headscarf.

    Simpleminded question: Might it be less expensive for A&F to just carry a single small line of plain headscarves, than to fight all the way to SCOTUS?

    Purchase a minimum order, a few hundred or thousand. Sell them “under the counter” if they don’t wish to display them. When an employee requires a headscarf for religious reasons, they can buy one from A&F.