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22 Jan 2015

Vivian Berger, Columbia Law School, in National Law Journal (USA)

US Supreme Court should not narrow employer's obligation to accommodate for religious belief in discrimination lawsuit against Abercrombie, says law professor

“Standard requiring employer to have 'actual knowledge' of need for accommodation is too rigid,” 19 Jan 2015 [Subscription only]

...[T]he U.S. Supreme Court in [EEOC] v. Abercrombie & Fitch Stores, will…referee a clash between an employer's neutral rule respecting clothing and an employment applicant's need for a faith-based deviation from it…The EEOC, now the petitioner, sued Abercrombie…on behalf of…Samantha Elauf, a hijab-wearing Muslim…who applied to be a salesgirl at…Abercrombie…Despite being…qualified, Elauf was refused the job because of her head­scarf. According to Abercrombie…, the hijab infringed its "Look Policy…” The governing statute…bars employment discrimination "because of" religion [and]…comprehends an affirmative duty "to reasonably accommodate" a "religious observance or practice" unless the employer proves it is unable to do so without incurring "undue hardship." The precise question…is whether, as the court of appeals held, an employer may be found liable for refusing to hire an applicant only if it "has actual knowledge" that such an accommodation is required and that this knowledge stems "from direct, explicit notice from the applicant."…But [this]...rewards employers who adopt a stance of willful ignorance rather than opening up a dialogue…[The] justices should reject the majority's rigid "knowledge" holding and remand for further proceedings on issues…such as whether Elauf has a sincerely held belief in Islam and whether permitting the headscarf would have caused Abercrombie undue hardship…