United States: Accommodating Religious Dress

On June 1, 2015, the United States Supreme Court handed down a decision clarifying the circumstances under which employees and prospective employees can establish religious discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"). See Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015).

In this case the Equal Employment Opportunity Commission ("EEOC") brought suit against the retailer Abercrombie & Fitch ("Abercrombie") on behalf of Samantha Elauf, a practicing Muslim woman who wore a black hijab — a headscarf traditionally worn to show modesty — to her job interview. Wearing a headscarf violates Abercrombie's "Look Policy," which prohibits employees from wearing black clothing or "caps." Although Ms. Elauf otherwise received positive reviews, her interviewer allegedly assumed that she wore the hijab for religious reasons despite the fact that she never mentioned her religion or the need for a religious accommodation to the Look Policy. Ultimately, Abercrombie declined to hire her because her headscarf violated the Look Policy. The EEOC claimed this amounted to disparate treatment because Abercrombie failed to make an exception to its Look Policy and hire Ms. Elauf, notwithstanding the retailer's lack of actual knowledge that she wore the hijab for religious reasons.

Title VII prohibits employers from refusing to hire a job applicant "because of" his or her religion, including a religious practice (such as wearing a hijab), when the applicant can be accommodated without undue hardship to the employer. 42 U.S.C. § 2000e-(2)(a), (j). Reversing the Court of Appeals for the Tenth Circuit, the Court held that to succeed on a disparate treatment claim, a job applicant need not prove that the employer had "actual knowledge" of the applicant's need for a religious accommodation but rather only that the individual's need for an accommodation was a "motivating factor" in the challenged employment decision. Put simply, an employer's assumption concerning an applicant's religious practice may not be a motivating factor in an employment decision.

In the wake of this decision, employers find themselves in a "Catch-22." Employers are discouraged from directly inquiring into an applicant's religious beliefs because such inquiries could result in disparate treatment claims; yet if they do not inquire, they are forced to make assumptions as to whether accommodations are necessary or feasible when making employment decisions — a practice barred by the Court's holding. For this reason, employers are advised to take proactive measures to avoid litigation. Below are some tips for getting started:

  • Affirmatively Discuss Policies and Job Requirements With Applicants: While it is not prudent to directly ask an applicant about his or her religion, it is appropriate, when an interviewer suspects that an applicant may need a religious accommodation, to make company policies and essential job requirements clear and to ask the applicant if he or she believes he or she can comply. This neutral practice places the applicant on notice of the employer's policy and provides the applicant with an opportunity to raise conflicts without the employer directly asking about the applicant's religion during an interview. Should an applicant raise a concern, the interviewer should engage in an interactive process to see whether an accommodation can be reached, and then should document that process in writing.
  • Revise Job Descriptions: Revise job descriptions to ensure they contain information about relevant policies and essential job requirements; include a statement that accommodation requests should be made to the employer's Human Resources department. Job descriptions that include this information not only place an applicant on notice of the potential need for an accommodation but also provide him or her with an avenue through which to inquire about an accommodation and relieve the interviewer of the need to respond on the spot to inquiries concerning accommodations.
  • Involve Human Resources: Human resources professionals tend to be well-versed in equal employment opportunity issues and experienced in handling difficult conversations. It therefore is worthwhile to encourage managers and other employer-interviewers who are unsure how to handle sensitive situations to involve Human Resources rather than address them on their own.
  • Increase Training: Religion is a difficult subject to discuss under even the most comfortable circumstances. Consider providing interviewers and Human Resources personnel with additional training to address how and when to inquire about religious accommodations during an interview or further along in the hiring process; role-playing these awkward conversations may also help these professionals become more comfortable in real-life situations.
  • Reconsider Image-Based Policies: While neutral policies that regulate appearances are not per se illegal, they can invite litigation because they single out individuals based on their appearance, which may stem from a religious practice, such as wearing a yarmulke, hijab, or cross necklace or growing a beard. These kinds of policies could also expose an employer to age or disability discrimination claims. Accordingly, employers are encouraged to revisit these policies in the wake of Abercrombie and consider whether or not they are truly necessary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Herrick, Feinstein LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Herrick, Feinstein LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions