Employers be on notice.  The United States Supreme Court has recently agreed to hear a case, EEOC v. Abercrombie & Fitch Stores, Inc., which will impact an employer's obligation to provide religious accommodations to employees or prospective employees who seek to wear religious garb that may not be in keeping with the employer's dress code. 

The case involves a job applicant who wore a hijab, a religious head scarf worn by many practicing Muslims, to her interview.  During the interview, the applicant never informed the interviewer she was Muslim, never mentioned that she wore the headscarf for religious reasons and never said that she would need an accommodation to address the conflict between her religious practice and Abercrombie's clothing policy.

The applicant was not offered a position, ostensibly because her headscarf was inconsistent with Abercrombie's "look policy".  Abercrombie contended that its Look Policy is vital to its "preppy" and "casual" brand, because it does very little advertising through traditional media outlets (e.g., print publications or television); instead, it relies on its in-store experience to promote its products. The Equal Employment Opportunity Commission sued on the applicant's behalf for religious discrimination and won, but that decision was overturned by the 10th Circuit U. S. Court of Appeal. The Court said that Abercrombie could not be liable because the applicant never actually informed the store prior to its hiring decision that she wore the headscarf for religious reasons.

The 10th Circuit's opinion is at odds with a Guidance on religious discrimination published by the EEOC which advises employers on how to  deal with such situations.   The EEOC Guidance suggests that even where an applicant does not specifically ask whether she would be permitted to wear a headscarf, the manager was nevertheless on notice that an accommodation might be needed and he should have raised the issue of the dress code. The EEOC's Guidance further provides that once an employer is aware that a religious accommodation is needed, an employer must accommodate an applicant or employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. This means that when an employer's dress and grooming policy or preference conflicts with an employee's known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer's business.  This is so even where a company's marketing strategy requires sales personnel to wear only clothing sold in its stores, and no headgear, so that they will look like the clothing models in the company's sales catalogue.

In line with this Guidance, the EEOC is urging the Supreme Court to impose greater obligations upon employers to not just respond to, but also to anticipate religious accommodations that may be needed by the current or prospective workforce.