Could a Victoria’s Secret model sue her employer because her religious beliefs require modesty?

Q.     Could a Victoria’s Secret model sue her employer because her religious beliefs require modesty?  Just ask clothing retailer Abercrombie & Fitch.  What does the new Supreme Court ruling mean for employers?  Is the Supreme Court the new fashion police?

A.     Most likely you will still need to continue to divert the eyes of your adolescent boys when walking past the Victoria’s Secret stores at the mall.  That makes sense because hiring a model to don specific clothing actually requires the model to wear the specific clothing – thus, making it an essential function of the job.  That said, a new Supreme Court ruling provides some concerns for employers with strict dress codes – even those in the fashion industry.

In 2008, Samantha Elauf (“Elauf”) was denied a job with Abercrombie & Fitch (“Abercrombie”) because her headscarf violated Abercrombie’s dress code.  The Equal Employment Opportunity Commission (the “EEOC”) sued on behalf of Elauf, claiming that Abercrombie failed to provide Elauf with a religious accommodation.  Although the EEOC initially prevailed and obtained an award of $20,000.00, on appeal the 10th Circuit Court of Appeals reversed the decision, holding that Elauf had never asked Abercrombie for a religious accommodation.

On Monday, the United States Supreme Court reversed the 10th Circuit’s decision.  Although Abercrombie had argued that Elauf should have informed Abercrombie that a religious exemption might be needed, the Supreme Court ruled that if an applicant actually requires an accommodation for his or her religious practice and the employer’s desire to avoid the accommodation is a motivating factor regarding its employment decision, the employer is in violation of Title VII.  This is true even if the employer does not confirm the need for the accommodation with the employee. In this case, although Abercrombie only had suspicion that Elauf was wearing a headscarf for religious reasons, the Court found that Abercrombie could not make an employment decision based on this fact.

The need for religious accommodation may arise where an individual’s (employee or applicant) religious beliefs, observances, or practices conflict with a specific task or requirement of the position or an application process.  An accommodation may relate to scheduling, dress and grooming, or religious expression in the workplace.  An accommodation that segregates the individual from other employees or the public is unacceptable.  If the accommodation does not pose an undue hardship, the employer must grant the accommodation.  An accommodation may cause an undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.  Undue hardship may also be shown if the accommodation violates the terms of a collective bargaining agreement or job rights established through a seniority system. Undue hardship based on cost requires that the employer show more than a minimal cost to the business. The hardship must be genuine and cannot be merely speculative.

Although the Supreme Court Justices will not be taking over E’s Live from the Red Carpet anytime soon, they did just provide another hurdle for employers to jump through when hiring or disciplining employees. For now, black robes appear to be safe.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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