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Tenth Circuit Rules that To Receive a Religious Accommodation, You Must Request One



By Jonathan Gerber

The evidence submitted to the court established the Muslim applicant wore a hijab to her interview with the clothing retailer, and the manager who conducted the interview asked the Muslim applicant if she was required to wear the headpiece for religious reasons, and noted the applicant’s appearance did not conform with the retailer’s “look.”  While the manager who conducted the interview testified she assumed the hijab was worn for religious reasons, the applicant did not indicate at her interview she was Muslim nor did she inform the retailer she was required to wear the headpiece due to religious reasons.  Thus, while undisputed evidence indicated the hijab influenced the clothing retailer’s eventual decision to decline her employment application, the applicant never requested an accommodation from the retailer’s “Look Policy” to wear a hijab in accordance with her religious beliefs.

The EEOC’s lawsuit accused the clothing retailer of violating Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees or applicants based on religious beliefs and/or practices.  Title VII also requires employers to make (or, at the least, consider) accommodations for employees unless such accommodations would result in undue hardship on the employer’s business.  Although the trial court found in favor of the Muslim applicant, on appeal, the Tenth Circuit reversed the lower court’s ruling and, in a rare move, specifically found the retailer did not discriminate as a matter of law.  In doing so, the Tenth Circuit concluded the burden in a Title VII case such as this one is on the employee or applicant to affirmatively advise the employer when a religious belief and/or practice conflicts with an employer’s policy.  The court held because the Muslim applicant failed to inform the clothing retailer of her conflict and failed to request an accommodation, she did not have a claim for religious discrimination under Title VII.

The court provided further clarification of the respective duties of employers on the one hand and employees and/or applicants on the other hand for purposes of requesting a religious accommodation: notice of the conflict must come directly from the employee/applicant.  In other words, an employer has no duty to investigate possible conflicts of which it becomes aware from third-party sources and offer accommodations.  Employers’ duties for purposes of a Title VII religious accommodation are triggered only upon notice of a conflict received directly from an employee and/or applicant.  It must be noted this rule does not apply to general allegations of discrimination on the basis of religious beliefs.  For instance, if an employer becomes independently aware of an applicant’s religious beliefs and refuses to hire based on those beliefs rather than a refuses to accommodate, the applicant may still have a claim.

Some critics are concerned about the conflict this Tenth Circuit decision may have with decisions from other circuit courts regarding what notice is sufficient to trigger an employer’s obligations under Title VII’s anti-discrimination provisions and corresponding duty to offer accommodations.  Other circuits have held “an employer’s actual, particularized knowledge of a religious conflict” triggers a duty to consider accommodations.  While this decision may or may not encourage the EEOC to pursue further actions to flush out what degree of knowledge is sufficient to trigger an employer’s obligation to consider accommodations, the Tenth Circuit in this case concluded its decision does not conflict with other circuits around the nation as there was no evidence in the record the clothing retailer had any knowledge of the conflict imposed by the Muslim applicant’s hijab from third-party sources.  

Thus, while employers in the geographical confines of the Tenth Circuit have reason to celebrate this judicial victory, it may be short-lived given the seemingly inconsistent standards this circuit will now be applying in these cases compared to those standards sister circuits will be applying in cases brought under the same federal law.  Unless and until the U.S. Supreme Court weighs in on this issue or the Tenth Circuit revisits this decision, courts in the U.S. will remain at odds on this issue.

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