In its recent ruling in EEOC v. Abercrombie & Fitch Stores, Inc., the majority of a 3-judge panel in the Tenth Circuit wrongly dismissed the EEOC’s claim of religious discrimination at the summary judgment phase. In that case, Abercrombie & Fitch declined to hire Samantha Elauf, a Muslim, because her headscarf conflicted with its undisclosed Look Policy. When sued by the EEOC, Abercrombie cried wolf declaring that it did not know that Elauf was a Muslim and wore a hijab, despite not hiring her exactly for that reason. Abercrombie claimed that because Elauf did not explicitly request a religious accommodation, Abercrombie lacked the requisite notice and could not be found liable for religious discrimination. Surprisingly, the majority agreed with Abercrombie and overturned the district court’s decision to the contrary.

In reaching its holding, the majority discounted key testimony (including the following facts in its own opinion) that Abercrombie was on notice that Elauf was Muslim and wore her headscarf for religious reasons. Elauf testified that prior to her interview she discussed with her friend, Farisa Sepahvand, an employee at Abercrombie, whether wearing a hijab would be permissible. Sepahvand raised the issue with the assistant manager Kalen McJilton who suggested that he saw no problem with the hijab. Sepahvand communicated this to Elauf. Elauf testified that she then interviewed with assistant manager Heather Cooke while wearing her hijab. Assistant manager Cooke testified that she was familiar with Elauf and had seen her wearing hijab at the Abercrombie store and elsewhere in the mall. Cooke testified that during the interview, she assumed Elauf was Muslim and “figured that was the religious reason why she wore her head scarf.” Cooke further testified that because she was concerned about Elauf’s hijab, she consulted with her direct supervisor and then her district manager, Randall Johnson. Cooke then testified that Johnson told her not to hire Elauf because her headscarf was inconsistent with the Look Policy. Despite awareness that a conflict existed, neither Johnson nor Cooke informed Elauf of the conflict. And at no point did they inform Elauf that a Look Policy existed that precluded the wearing of “caps” and that Elauf would need to request a religious accommodation in order to wear her hijab.

The majority concluded that dismissal was appropriate despite the clear dispute of fact in the record regarding whether Abercrombie had the requisite notice for a religious discrimination claim under Title VII: “Notwithstanding Ms. Cooke’s contrary deposition testimony, Mr. Johnson denied being told by Ms. Cooke that Ms. Elauf was a Muslim and that she wore her headscarf for religious reasons.” Advancing form over function, the majority dismissed Elauf’s religious discrimination claim simply because Elauf did not state the magical words that she needed a religious accommodation, despite lacking knowledge that a conflict existed and in spite of Abercrombie’s affirmative knowledge and reliance on that conflict to not hire Elauf.

In his dissenting opinion, Justice David M. Ebel wrote that the majority expected Elauf to “initiate a general discussion of her religious belief during a job interview just in case her religious beliefs and practices might conflict with some unstated policy or work rule of the employer.” Yet Title VII does not envision such an outcome. Time will tell if the EEOC will challenge the majority’s holding. If it does, let’s hope on rehearing the Tenth Circuit gets it right.