The U.S. Supreme Court announced today that it will consider whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” if the individual did not directly and explicitly request an accommodation and the employer did not actually know the individual needed an accommodation. In the case now before the Supreme Court, EEOC v. Abercrombie & Fitch, the U.S. Court of Appeals for the Tenth Circuit held that an employer will not be liable for failing to accommodate an applicant’s religious garb/grooming practice unless the applicant personally and explicitly tells the employer the practice is religious and seeks an accommodation.  

In March 2014, after the Tenth Circuit’s decision in Abercrombie, the EEOC issued technical assistance documents on employers’ Title VII-based duty to reasonably accommodate religious dress and grooming practices. The EEOC’s guidance stated that once on notice that a religious accommodation is needed for sincerely held religious beliefs or practices, an employer is required to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship.  In contrast to the Tenth Circuit’s opinion in Abercrombie & Fitch, the EEOC stated: “In some instances, even absent a request, it will be obvious that the practice is religious and conflicts with a work policy, and therefore that accommodation is needed.” 

In its petition for certiorari, the EEOC argued the Tenth Circuit’s decision, “threatens broad adverse consequences, particularly in situations . . . where applicants may never learn that their religious practices conflict with job requirements and therefore require accommodation.”  

The certiorari grant in Abercrombie marks the second time this year the Supreme Court has agreed to render an opinion that could negate recently published EEOC guidance.  In July, the EEOC issued its much-anticipated enforcement guidance on pregnancy discrimination. There, the EEOC articulated  its position regarding the types of accommodations an employer must provide a pregnant employee and what circumstances call for such accommodations. The agency published its guidance before the Supreme Court had a chance to consider Young v. United Parcel Service, Inc., in which the Court will decide whether and to what extent an employer must provide pregnant employees with work accommodations under the Pregnancy Discrimination Act.