If a female applicant for a position appears at the interview wearing a headscarf, must the employer assume that it is worn for religious purposes? If the scarf would otherwise be prohibited under the employer's dress code, must the employer conduct a reasonable accommodation analysis based on the assumption that its removal would violate the applicant's beliefs? These difficult questions were the subject of a decision earlier this month from the Tenth Circuit Court of Appeals. Ultimately, the court concluded that the applicant had an affirmative obligation to make the employer aware of the religious nature of her practice in order to be entitled to accommodation under Title VII.

EEOC v. Abercrombie & Fitch Stores, Inc. involved a Muslim teenager who applied for a sales position with the clothing retailer. The defendant's dress code for salespersons prohibited headwear, but the company had made accommodations in the past based on religious practices. During the interview, the plaintiff wore a headscarf, but never mentioned that she was Muslim. The subject of the headscarf never came up. The interviewing manager later asked her supervisor about the headscarf, and he informed her that it was inconsistent with company dress expectations. The plaintiff's interview score was adjusted on this basis, and she was not offered a job.  She sued, claiming religious discrimination under Title VII.

The district court granted summary judgment for the EEOC. It concluded that the employee's appearance at the interview wearing the headscarf was an implied request for an accommodation. The Tenth Circuit reversed this decision, instead granting summary judgment for A&F. The court said that wearing the headscarf was not an absolute indication that it was based on religious beliefs, even for Muslims. Some Muslims wear headscarves for cultural or other reasons unrelated to their belief system. The plaintiff never indicated that removing the headscarf at work would present a conflict with her beliefs.

The Tenth Circuit noted that the EEOC discourages employers from asking about applicants' religion during the hiring process. Therefore, the plaintiff had an affirmative obligation to inform A&F of her need for a religious accommodation. The court rejected the EEOC's position that based on a totality of the circumstances, the employer knew or should have known of the need for the accommodation.

A partially dissenting judge agreed that the EEOC should not have been granted summary judgment, but disagreed with the majority's dismissal in favor of the employer. He concluded that there were factual issues as to why A&F declined to further consider the plaintiff's application, when it never advised her that the headscarf worn to the interview was inconsistent with its dress code. In other words, the plaintiff's obligation to request a religious accommodation was not triggered until she became aware of a possible conflict between her beliefs and the employer's policy. In this case, A&F assumed that she would not work without the headscarf and made its decision on this basis.

While this reasoning may appear more logical than the majority's opinion, employers can use this case as an illustration of the reasons for avoiding questions about applicants' religion or religious practices during the job interview. However, in situations where the applicant's dress or scheduling preferences appear to be in conflict with underlying company policy, the employer should consider making the applicant aware of this conflict, and providing him or her the opportunity to contend that there is some religious basis for their preferences. Other federal courts may not adopt the strict standard used here by the Tenth Circuit.