Razing the Forest to Kill a Tree: EEOC V. Abercrombie and Why the Supreme Court Must Continue to Place the Burden of Actual Notice on Applicants and Employees in Title VII Requests for Religious Accommodation

Abstract

The Supreme Court must affirm the 10th Circuit’s holding in EEOC v. Abercrombie that job applicants are required to give notice to an employer of a possible inflexible religious exemption from a facially-neutral corporate policy before the employer has a duty to accommodate that applicant under Title VII. Requiring applicants to bear the burden of providing notice is the most workable standard available that best comports with the aims of Title VII and the Civil Rights Act. The “suspicion of a possible conflict” approach advocated by the EEOC and debated at oral argument would conflate correct guesswork with actual knowledge, foster uncertainty, lead to muddled and marginal corporate HR policies, link the religious practices of groups with those of individual applicants, force employers to educate themselves about various forms of religious garb in contradiction with established precedent, and possibly result in unintentional yet invidious discrimination based on inquiring employers engaging in stereotypes and misperceptions of certain dress articles. The “suspicion of a possible conflict” standard is simply not tenable in practice. By contrast, the current state of the law-requiring the applicant to notify the employer of an accommodation — is clear, coheres to EEOC directives, and provides real remedies for applicants who take the initiative to understand corporate policies and determine whether they conflict with their own personal beliefs. Rather than unfairly discriminating against applicants or in any way limiting Title VII’s effect, the notice requirement protects applicants from improper employer assumptions and provides a clear “trigger point” past which a bilateral dialogue on reasonable accommodations must start.