The Seventh-day Adventist Church filed an amicus brief today urging the United States’ top court to accept the case of a Muslim girl who was denied a job because her hijab—a head-covering—violated a company’s policy.
The Adventist Church’s “friend-of-the-court” brief is joined by seven other faith groups for the case Equal Employment Opportunity Commission vs. Abercrombie & Fitch Stores, Inc. The U.S. Supreme Court will decide in October whether to accept the case.
The Church’s move follows a decision last year by a federal appeals court that ruled against the girl and created additional statutes that violate protections of the U.S. Civil Rights Act. That ruling, by the 10th Circuit Court of Appeals in Denver, said the religious observance or practice in question must be mandatory, not just encouraged by the employee’s religious beliefs.
The brief claims last year’s ruling also mandates undue responsibility on applicants to raise concerns over religious observance. Applicants might not always know the employer’s requirements.
Church legal counselors said the ruling then allows an employer’s ignorance to eliminate protections for religious-observant applicants, which violates Title VII of the Civil Rights Act.
“If this decision were to stand, employers would be able to avoid their obligation to provide reasonable accommodation for employees of faith,” said Todd McFarland, an associate general counsel for the Seventh-day Adventist Church headquarters. “It could mean that everyone from Sikhs who are wearing a turban to Seventh-day Adventists and Jews who need Sabbath off from work could be denied a reasonable accommodation.”
The case stems from a 2008 incident in which Samantha Elauf wore a hijab when applying for a sales position at an Abercrombie & Fitch store in Tulsa, Oklahoma. After a manager confirmed with a supervisor that Elauf’s headwear violated store policy, she was deemed ineligible for hire without discussion of religious accommodation.
The U.S. Equal Employment Opportunity Commission, which filed a lawsuit on Elauf’s behalf, said the move defied Title VII of the Civil Rights Act. The title obligates employers to take steps to “reasonably accommodate” a prospective employee’s “religious observance or practice.”
While a federal judge sided with the EEOC in 2011, the 10th Circuit’s ruling last year upended that decision, claiming Elauf never told Abercrombie she needed a religious accommodation, even though she was wearing a hijab in the interview.
And that, Adventist legal counselors say, places undue responsibility on the applicant to determine whether her religious beliefs or practices conflict with company policy.
Today’s amicus brief points out that “Frequently, an applicant will be unaware of a work-religion conflict simply because of her inferior knowledge of the employer’s work requirements.”
Also, a hiring process can be technologically structured so that an employee can’t raise the issue of potential conflict, such as online applications asking applicants which days of the week they are available to work.
Religious clothing and the observance of Sabbath and other holy days are the most common areas of conflict in the workplace, McFarland said. Hijabs, turbans, yarmulkes and other head coverings frequently conflict with a company’s “look” policy, while Sabbath observance can clash with scheduling.
The Adventist Church is joined on the brief by the National Association of Evangelicals, Union of Reform Judaism, Christian Legal Society, The Sikh Coalition, American Jewish Committee, KARAMAH: Women Lawyers for Human Rights, and the American Islamic Congress.
Abercrombie & Fitch changed its policy on headwear approximately four years ago. The Ohio-based company has settled similar lawsuits in California, the Associated Press reported last year.
—additional reporting by Elizabeth Lechleitner