• Contemporary Clothing's "Look" Collides With Title VII
  • October 28, 2014 | Author: Bennett L. Epstein
  • Law Firm: Foley & Lardner LLP - Chicago Office
  • There is more than a little bit of irony when a clothing company with a target market of teens and young adults has a fashion dilemma. However, a national retailer has just such a dilemma arising from a potential religious accommodation dispute that has just taken a front and center position in the national legal landscape.

    All the way back in 2008, a young woman applied to the company to be a “model” (the employer’s term for salesperson) at its Tulsa, Oklahoma store. She arrived at her interview appropriately attired but, in keeping with her Muslim upbringing, wore a traditional hijab. During her interview, the candidate did not mention her religion or that she wore the hijab for religious purposes. Likewise, the interviewer did not mention the hijab or ask about her religion. The company did not hire the job seeker because she lacked the “Look” as set forth in its “Look Policy” which did not include a hijab.

    The candidate filed a charge with the EEOC and the EEOC ultimately filed a law suit claiming the employer failed to accommodate the candidate’s religious beliefs and expressions, in violation of Title VII of the Civil Rights Act of 1964. The company responded contending that the candidate never told the interviewer she adhered to Muslim beliefs, which included wearing the hijab, nor that she required an accommodation. It also claimed that even had the candidate made such statements, wearing the hijab would have imposed an undue hardship. The District Court sided with the EEOC, but on appeal, the Tenth Circuit Court of Appeals (covering Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, and in a jurisdictional peculiarity, all of Yellowstone National Park) disagreed and overturned the $20,000 judgment. Exactly one year ago, the Tenth Circuit ruled that the EEOC did not satisfy the requirements of Title VII because the candidate failed to notify the clothing company that she wore the hijab due to her religious belief and that she needed an accommodation. The appellate court viewed Title VII as requiring individualized religious beliefs and that wearing a hijab did not communicate the applicant’s personal religious belief.

    So why are we addressing this year old ruling now? Just a handful of days ago, the United States Supreme Court agreed to review the Tenth Circuit’s decision. What is now at stake nationwide is whether the mere wearing of religious garb such as a hijab or yarmulke, or an adornment such as a crucifix, is a sufficient expression of a sincerely held personal religious belief to put an employer on notice of the need for an accommodation or an expression of cultural identity for which no accommodation is required. The decision of the Supreme Court will almost certainly have wider implications with respect to other statutes which require accommodation such as the Americans with Disability Act and the Pregnancy Discrimination Act. We eagerly await the decision of the Supreme Court.