How do I look? Supreme Court to Weigh In On Dress and Grooming Policies in Two Religious Liberty Cases

The Supreme Court this term will consider two religious accommodation cases involving dress and grooming requirements. Regardless of how they are decided, the cases are a reminder to employers to consider employees’ religious rights when making employment decisions or developing policies, including policies on dress or grooming.

In Holt v. Hobbs,[1] the Court will consider whether a prisoner has the right to grow a beard for religious reasons.  Arkansas inmate Gregory Holt believes his Muslim faith requires him to grow a beard. He challenged an Arkansas state prison system policy prohibiting inmates from growing beards (except for quarter-inch beards for inmates with diagnosed dermatologic problems).  The prison system argued the policy was justified by security concerns and the possibility that beards could conceal contraband.  The District Court ruled against Mr. Holt, finding that prison officials’ security concerns deserved deference—even though the court itself doubted the validity of the security concerns. The Eighth Circuit Court of Appeals affirmed. At issue before the Supreme Court is how much deference to give prison officials when policies infringe on religious liberty, which is protected by federal statute. And if deference is not required, how are courts to draw the line on balancing religious rights with competing concerns?

In the second case, EEOC v. Abercrombie & Fitch Stores, Inc.,[2] 17-year-old Samantha Elauf, who is Muslim, wore a hijab—a traditional Muslim headscarf—when she interviewed for a salesperson position in an Abercrombie store in Tulsa.  She did not mention the hijab or her religion in her interview, but the interviewer assumed she was Muslim and that she wore the hijab for religious reasons.  Evidence suggested the hijab influenced the decision not to hire her because it conflicted with Abercrombie’s “look policy,” which required sales persons to wear “classic East Coast collegiate style of clothing.”  The EEOC brought suit on Ms. Elauf’s behalf and won summary judgment, but the Tenth Circuit Court of Appeals reversed that decision, holding that because Ms. Elauf had not notified Abercrombie of her need to wear the hijab for religious reasons, her religious accommodation claim failed as a matter of law.  The Tenth Circuit reasoned that the burden of notice is on the employee or applicant, disagreeing with the EEOC’s view that something less than particularized, actual knowledge of the need for an accommodation is required. That issue will now be addressed by the Supreme Court.

The two cases follow last term’s Burwell v. Hobby Lobby decision in which the Supreme Court ruled that some corporations could refuse to provide contraception coverage to their employees on religious grounds. After finding broad religious freedom rights for corporations, many are interested in how the Court will interpret those rights in the context of individuals.

The Holt case was argued on October 7, 2014, and the Abercrombie case has not yet been set for oral argument.

-Therese Dennis

[1] No. 13-6827 (argued Oct. 7, 2014).

[2] No. 14-86 (cert. granted Oct. 2, 2014).