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In a 2-1 decision, the Tenth Circuit reversed summary judgment in favor of the EEOC on its claim that Abercrombie & Fitch Stores, Inc. failed to provide an applicant with a reasonable religious accommodation and remanded the case for entry of judgment in favor of Abercrombie.

In the case, EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-5110 (10th Cir. Oct. 1, 2013), Abercrombie refused to hire a 17-year-old  Muslim applicant who wore a hijab because it violated the company’s clothing, or “look,” policy, which prohibits black clothing and “caps.”  The applicant wore a black hijab to the interview, where the company manager discussed with the applicant the “look policy.”  Neither religion nor the hijab was discussed.  However, the manager who interviewed the applicant “assumed that she was Muslim” and “figured” that was why the applicant wore the hijab.  The manager consulted the district manager, who said not to hire the applicant because the hijab was inconsistent with the “look policy.”  The manager said the district manager told her to change the applicant’s appearance score on the interview sheet, bringing the applicant’s overall score below the level required to be recommended for hire, which she did.

The EEOC argued that the applicant wore the hijab due to her sincerely held religious belief, and Abercrombie failed to hire her because the hijab conflicted with the company’s “look policy.”  Abercrombie contended that its failure to hire the applicant was not discriminatory because the applicant never informed the company that she wore the hijab for religious reasons and required an accommodation and because permitting the applicant to wear a hijab would cause an undue burden on the conduct of its business.  The lower court found Abercrombie failed to produce sufficient evidence to dispute the EEOC’s claims and granted summary judgment in favor of the EEOC. 

On appeal, the Tenth Circuit found there was no genuine dispute of material fact that the applicant never informed Abercrombie prior to its hiring decision that she wore a hijab for religious reasons and required an accommodation for that practice.  Thus, the EEOC failed to state a prima facie case of religious discrimination.

In its discussion, the court reasoned that, because activities, such as wearing a hijab, can have religious and secular purposes, the adherent is obligated to raise an objection to a conflicting workplace rule.  The court also noted that, under Title VII of the Civil Rights Act of 1964, employers are affirmatively discouraged from asking or speculating about employee’s religious beliefs. 

The dissent, although agreeing summary judgment to the EEOC was improper, argued judgment in favor of Abercrombie was not proper either, because the prima facie test should not be applied so strictly.  Instead, the test should fit the circumstances.  Where, as in Abercrombie, the employer has superior knowledge of the conflict, rigid application of the failure-to-accommodate prima facie test is inappropriate.  In such an instance, the employer should be required to pursue an accommodation.