By Gerald L. Maatman, Jr. and Howard M. Wexler

We previously reported here on the EEOC’s stunning defeat in the Tenth Circuit in the case of EEOC v. Abercrombie & Fitch, No. 11-5110 (10th Cir. Oct. 1, 2013), concerning a job applicant who was not hired because she wore a hijab in violation of Abercrombie’s “Look Policy.” In this decision, the Tenth Circuit not only overturned the grant of summary judgment to the EEOC, but also, in a complete 180 degree turn, held that Abercrombie was actually entitled to summary judgment. In announcing the standard that it would apply to religious accommodation cases going forward, the Tenth Circuit held:

In sum, we hold that, in order to establish the second element of their prima facie case under Title VII’s religion-accommodation theory, ordinarily plaintiffs must establish that they initially informed the employer that they engage in a particular practice for religious reasons and that they need an accommodation for the practice, due to a conflict between the practice and the employer’s work rules. As noted, we recognize that some courts have taken a different path on this questions. However, we are confident that our approach is the sounder one.

Id. at 45-46. (emphasis added).

On December 4, 2013 the EEOC filed a Petition for Rehearing En Banc. In the Petition, the EEOC advances three grounds in support of its position:

1. “The majority’s decision – that an employer’s awareness of a potential conflict [between an applicant’s religious practices and a work requirement] is insufficient to support a prima facie case of failure to make a reasonable accommodation – raises a question of exceptional importance because it creates a conflict with the decisions of other courts of appeals.”

2. “Second, the majority’s rigid definition of the notice element of a prima facie case conflicts with decisions of the Supreme Court and this Court, each of which requires courts to interpret the prima case requirements flexibility.”

3. “Third, the majority’s decision conflicts with this Court’s recognition that when an employer takes an adverse action against an individual ‘based solely on his religious practices without an attempt to accommodate him, assuming it could have done so without undue hardship, it committed an illegal act.’”

Id. at 1-2.

Given the magnitude of the EEOC’s defeat, we are not surprised that it has decided to seek en banc review. We will be sure to keep our loyal readers updated on further developments on this case, and whether the Tenth Circuit decides to grant the EEOC’s Petition and revisit the panel’s decision that Abercrombie did not engage in religious discrimination.

Stay tuned!

Readers can also find this post on our EEOC Countdown blog here.