Abercrombie & Fitch has won a huge victory in one of its Muslim hijab-accommodation cases — but will the decision stand? As you know, the Equal Employment Opportunity Commission has filed two lawsuits against Abercrombie in California — both of which have now settled — but there was another one in Oklahoma, and it may be the most interesting of them all.

The EEOC won summary judgment against Abercrombie, but two judges on a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit  reversed, finding not only that the EEOC was not entitled to summary judgment against Abercrombie, but also that Abercrombie was entitled to summary judgment against the EEOC.

Ouch, baby. Very ouch.

I would love to hear what you think about this case. If you aren’t already familiar with it, you may want to read about Abercrombie’s “Look policy” here. (It is my understanding that the store has adapted its policy since these lawsuits were filed.)

Samantha Elauf, a Muslim, interviewed for a job at an Abercrombie store in Tulsa. She wore a black hijabto her interview. The interview, with a store assistant manager, went fairly well. Although religion and the hijab were never discussed, the assistant manager assumed that Ms. Elauf was Muslim and wore ahijab for religious reasons. The assistant manager rated Ms. Elauf eligible for hire. However, after the interview, the assistant manager sought some guidance about the hijab and the Look policy, and eventually consulted with her district manager. According to the assistant manager, they discussed the fact that Ms. Elauf was, in all likelihood, Muslim.

Uh-oh.

The district manager instructed the assistant store manager to lower Ms. Elauf’s job interview scores so that she would not be hired. They never contacted her first to determine whether a religious accommodation was needed or possible.

I can see how someone would find that the EEOC was entitled to summary judgment on these facts, can’t you?

Well, Abercrombie appealed, and the decision came down this week. The EEOC lost big, and the court said that it was because Ms. Elauf had not informed Abercrombie of her need for a religious accommodation.

Here is what the court said, in so many words:

*Generally, the obligation for an employer to provide religious accommodations does not kick in until the employee requests an accommodation. The belief or practice must be a requirement (as opposed to a nice thing to do), the requirement must be “religious” in nature (as opposed to “cultural,” or an ethical or political belief, or a matter of personal preference), and the religious requirement mustconflict with a workplace requirement — otherwise, no accommodation would be necessary. In most cases, none of these things is self-evident, even if the employer knows that the employee is an adherent of a particular faith.

So far, I’m with the majority. This is an accurate statement of the law and also makes perfect sense.

*It is generally unlawful for an employer to consider religion in making employment decisions(unless you’re interviewing for your next pastor, rabbi, or imam), and therefore it is generally unlawful for an employer to ask about an applicant’s religion in a job interview. Therefore, it’s not fair to penalize an employer for not affirmatively asking about religion or religious accommodation needs in the hiring process.

Agreed. Still with ya.

*Therefore, an employee or applicant is not entitled to religious accommodation unless the employer has actual, particular knowledge of the employee’s or applicant’s accommodation need.This would usually require that the employee or applicant specifically tell the employer about the need.

Here’s an example as to why: Let’s say an applicant wears a crucifix necklace to her job interview and has on her resume that she’s a member of Our Lady of Reasonable Accommodations Catholic Church. Would this be enough for the employer to know that she needed to take All Saint’s Day off every year? Probably not. First, the employer may not be Catholic and may not know anything about this kind of thing. Second, even though All Saint’s Day is a holy day of obligation, most Catholics work as usual, and go to Mass either the evening before, or at lunch time, or the evening of. Some even skip Mass. (Not that I’m condoning that!) So, even if the employer knew something about the Catholic faith (or was Catholic him- or herself), the employer would not know of the applicant’s particular need based only on the known fact that she was Catholic. The employer would have to know how this particular individual interpreted her religious obligations.

I am still with the majority on the Tenth Circuit panel.

Until I get to the facts of this Oklahoma case, and then I hit a wall.

Here is my problem with this case. Ms. Elauf wore the hijab to her job interview. The hijab itself conflicted with a policy (the Look policy) of the employer. The assistant manager went over the Looks policy with Ms. Elauf but did not ask whether she had to wear the hijab as a requirement of her religion. In fact, the hijab was never discussed at all.

I am still OK with this because the assistant manager considered Ms. Elauf eligible for hire. Why go there if you don’t have to?

But then the assistant manager took it up with her boss, who apparently did not want a hijab-wearing employee in his store.

At this point, don’t we have a “conflict” between the applicant’s presumed religious beliefs and the workplace requirement? A conflict of which the employer is, or should reasonably be, aware?

So, at this point, doesn’t Abercrombie have the duty to call Ms. Elauf back and start talking about whether she needs to wear the hijab at all times, and if so, whether her need is a requirement that is religious in nature, and if so, whether accommodations are possible?

Before unilaterally reducing her interview scores and rejecting her as an applicant?

I think so. So did the EEOC. So did the lower court judge. So did the dissenting judge on the Tenth Circuit panel. Of course, this doesn’t mean I am right – only that I have company.

I would be surprised if the EEOC didn’t petition for rehearing by the full Tenth Circuit, and they might even try to take the case to the Supreme Court. Of course, Abercrombie may just go ahead and settle this one now, too, while it has some leverage.

What do you all think about this decision, or about religious accommodation in general? I would love to hear from you. Meanwhile, you may be interested in this recent bulletin by my law partner, Tommy Eden, about religion and the “Mark of the Beast.”

This article was originally printed on Employment & Labor Insider on October 4, 2013.  Reprinted with permission.

About the Author: Robin Shea is a partner at Constangy, Brooks & Smith, LLP.  She has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations.