Hijabs, Yarmulkes, Dastaars, and Explicit Notice Requirements: The Threat to Religious Accommodations Under Title VII

By Georgi J. Vogel Rosen*

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In the summer of 2008, seventeen-year-old Samantha Elauf was looking for a job in retail.1 Her friend, Farisa Sepahvand, worked at Abercrombie Kids and suggested that Elauf apply for a sales associate position.2 Sepahvand worried that Elauf’s hijab, or Muslim headscarf, might conflict with Abercrombie’s “Look Policy,” its employee dress code.3 Sepahvand consulted a store manager who did not believe Elauf’s hijab would present a problem as long as it was not black.4 Elauf applied for the job and wore a hijab to her interview with Heather Cooke, another manager.5 Cooke and Elauf did not discuss Elauf’s hijab, her religion, or the specifics of the Look Policy at the interview. However, Cooke “assumed” that Elauf was Muslim and “figured” that her reason for wearing the hijab was religiously-based.7 Cooke liked Elauf and told her to expect a call to schedule orientation. However, Elauf never received that call.8 Sepahvand later told her that Abercrombie had not hired her because her hijab would conflict with the Look Policy.9

Elauf filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC).10 The EEOC sued Abercrombie for violating Title VII of the Civil Rights Act of 1964 on grounds that the store failed to provide Elauf with a reasonable religious accommodation.11 The District Court for the Northern District of Oklahoma granted the EEOC’s motion for summary judgment and denied Abercrombie’s cross-motion.12 A jury awarded Elauf $20,000 in compensatory damages.13

However, in October 2013, the U.S Court of Appeals for the Tenth Circuit reversed and ordered summary judgment in favor of Abercrombie.14 In doing so, it created a circuit split as to whether liability for failing to provide religious accommodations under Title VII is predicated on “actual knowledge that a religious accommodation [is] required and [that] the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”15 The EEOC filed a petition with the U.S. Supreme Court for a writ of certiorari,16 which was granted in October 2014.17 The Supreme Court has scheduled oral arguments for February 25, 2015.18

In this article, I trace the development of Title VII religious accommodations19 and argue that the Tenth Circuit’s interpretation undermines the very purpose of the religious accommodation requirement. The Tenth Circuit’s decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. provides employers with a roadmap for discriminating against applicants from identifiably religious minority backgrounds without significantly risking liability. At a time when certain religious minorities—specifically, Muslims, Jews, and Sikhs—already are disproportionately targeted because of bias, the requirement that employees or applicants explicitly notify employers of the need for religious accommodations increases their vulnerability.

I. Development of Jurisprudence on Title VII Religious Accommodations

Hailed at the time of its passage in 1964 as part of “the most sweeping civil rights bill ever to be written into the law,”20 Title VII in part makes it unlawful for employers to discriminate on the basis of religion.21 However, the initial statutory language did not address religious accommodations.22 The absence of an express requirement to provide religious accommodations hindered Title VII’s goal of achieving equality in hiring practices.23 As the omission later was described, “[a]n employer [did not need to] hang a sign in his window stating ‘no Jews need apply’; he merely needed to require work on Saturday to accomplish the same end.”24 In 1966, the EEOC filled the void by promulgating regulations requiring employers to offer accommodations unless they presented “serious inconvenience to the product of business.”25 The EEOC later strengthened its regulations to accommodate employees’ religious practices absent “undue hardship.”26 However, courts questioned whether the EEOC had the authority to extend the statutory prohibition on religious discrimination to a requirement that employers reasonably accommodate employees’ religious practices.27

Congress resolved the issue in 1972 by amending Title VII to include Section 701(j):

The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.28

The amendment was intended to “assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law.”29 Through this addition, Title VII now prohibits both disparate treatment based on religion and failure to reasonably accommodate an employee’s religious practices absent undue hardship to the employer.30 Traditionally, undue hardship has received the greatest attention in failure-to-accommodate claims.31 The issue of notice has been scarcely litigated but now provides the basis for a circuit split.32

II. The Different Approaches to the Notice Requirement for Failure to Accommodate Claims

Before Abercrombie, courts recognized only one approach to the element of notice in failure-to-accommodate claims. As the only courts to review the issue at the time, the Seventh, Eighth, Ninth, and Eleventh Circuits all provide that notice may be established even when an employee has not provided the employer with explicit, detailed notice about the need for a religious accommodation.33 For example, in Heller v. EBB Auto Co., a Jewish employee was fired after insisting that he must miss work to attend his wife’s conversion ceremony.34 He had not explained that the ceremony was religious at the time of the request, but his employer had known that the employee was Jewish and that his wife was planning to convert.35 The Ninth Circuit concluded that the employee met the notice requirement, holding that “only enough information about an employee’s religious needs [is required] to permit the employer to understand the existence of a conflict between the employee’s religious practices and the employer’s job requirements.”36

The Tenth Circuit rejected this approach in Abercrombie. The Court held an employer cannot be held liable absent “particularized, actual knowledge” that a practice is religiously motivated and that the employee or applicant seeks an accommodation.37 Although the religious nature of Elauf’s hijab was hardly enigmatic, the Court concluded that the EEOC had not satisfied the notice element because Abercrombie was not explicitly informed that Elauf wore her hijab for religious reasons nor had she requested an accommodation.38

The majority relied heavily on both prior Tenth Circuit opinions where the element of notice had not been in dispute and prior EEOC guidance on covered religious practices.40 EEOC publications provide that “whether a practice is religious depends on the employee’s motivation.”41 The Court noted that “[a]n applicant or employee may engage in practices that are associated with a particular religion, but do so for cultural or other reasons that are not grounded in that religion.”42 The Court reasoned that the EEOC only regards a belief as “religious” if it relates to “life, purpose, and death . . . [and] even if an applicant or employee claims to be acting for ‘religious’ reasons, if those reasons actually do not pertain to such ultimate ideas, then that person’s conduct would fall outside the protective ambit of Title VII.”43 The Court observed that an employer cannot necessarily assume a practice is religious for Title VII purposes even if it appears to be.44

The Court held that it is incumbent upon the employee to notify the employer of the need for accommodation because EEOC materials dissuade employers from inquiring about applicants’ religious backgrounds.45 It concluded, “an employer is not legally obligated under Title VII to prompt applicants or employees to deliver notice of the need for a religious accommodation, by initially recounting a laundry list of all of the practices that employees cannot do in the workplace.”46

Tenth Circuit Justice Ebel dissented and argued for a “common sense exception” when an employee does not know a conflict exists but the employer does.47 Under such circumstances, Justice Ebel opines that the employer should legally be required to “initiate dialogue with the employee regarding reasonable accommodations,” even if though the employee has not made a request.48 He aptly observed that Abercrombie had escaped the Title VII requirements simply by relying on its assumptions about Elauf’s hijab and never informing her that it violated the dress code.49

III. A Legal Roadmap for Refusing to Hire Identifiable Religious Minorities

Abercrombie has broad implications for religious accommodations under Title VII. One of the most common failure-to-accommodate claims involves an employer’s refusal to permit an employee to wear religious attire50 such as hijabs, yarmulkes (Jewish skullcaps), and dastaars (Sikh turbans). Such attire readily identifies applicants as Muslim, Jewish, or Sikh,51 rendering them more vulnerable to bias than if they did not wear such attire.52

Any employer within the Tenth Circuit who wishes to avoid hiring an applicant who is identifiably from one of these religious groups merely needs to effectuate an employee dress code that prohibits headwear, not communicate its existence to the applicant during the application stage, and then refuse to hire the applicant on the basis of a conflict with the dress code. Abercrombie allows the employer to avoid liability because like Elauf, the applicant, unaware of a conflict, would not think to articulate it to the employer. Even though such conduct would be unlawful as disparate treatment, in the absence of smoking-gun evidence, it is unlikely that a rejected applicant could demonstrate by a preponderance of the evidence that the dress code did not constitute a legitimate non-discriminatory reason for the adverse action.52

Indeed, long gone are the days when employers put signs in their windows reading “Negroes and Jews need not apply.” Today, employment discrimination is more subtle and sophisticated to avoid liability.54 According to Justice Posner,

[d]efendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it; and because most employment decisions involve an element of discretion, alternative hypotheses . . . will always be possible and often plausible.55

Abercrombie now provides one such alternative hypothesis.

Religious discrimination claims represent a small proportion—fewer than one in twenty—of all individual charges filed with the EEOC each year.56 However, while the proportion of race-based and sex-based employment discrimination charges filed annually remained virtually unchanged between 1997 and 2014, religious discrimination charges increased more than twofold: from 1,709 charges in FY 1997 to 3,549 charges in FY 2014.57

Religious minorities, particularly Muslims and Jews, are disproportionately represented58 as claimants in EEOC charges of religious discrimination59 and other indicia of bias, such as hate crimes.60 Although Muslims are estimated to represent less than one-percent of the adult population of the United States,61 charges filed by Muslims comprised twenty-percent of all religious discrimination charges filed with the EEOC in 2012.62 Similarly, while Jews represent less than two-percent of the adult population,63 Jews filed approximately ten-percent of all religious discrimination charges between 2000 and 2012.64 Although the rates of the EEOC’s reasonable cause findings have not shared such marked disproportions,65 the high incidence of religious discrimination claims reflect, at the very least, the unease Muslims and Jews feel as religious minorities within the United States.66 Indeed, Muslims, Jews, and Sikhs remain disproportionate targets of hate crimes.67 The presence of anti-Muslim animus also is reflected in the anti-sharia legislation and ballot initiatives appearing in many states within the Tenth Circuit.68

Although Title VII prohibits employers from discriminating based on customer’s prejudices against religious groups,69 “[e]mployers are increasingly conscious of their brand image and the way that their employees’ appearance affects business.”70 Abercrombie, whose Look Policy has been the subject of numerous Title VII lawsuits,71 maintains that the policy “is critical to the health and vitality of its . . . brand.”72 Employers that place heavy emphasis on employee image may be hesitant to employ applicants whose religious attire might be received negatively by customers.73 Indeed, evidence demonstrates that dress codes prohibiting headwear have been unequally enforced against religious minorities like Muslims and Sikhs.74

Abercrombie provides employers a backdoor to religious discrimination. By creating employee dress codes and not communicating the rules during the application process, an employer can avoid hiring identifiable religious minorities. The onus would be on applicants to request accommodations that they would not know they needed. Such a practice runs counter to the very reason why Congress passed Section 701(j) in 1974 and the heart of Title VII, which were intended to ensure that all individuals be afforded the opportunity to work regardless of creed or other protected status.75 Just as in the years immediately after Title VII’s passage when an employer could avoid hiring Jews by requiring them to work on Saturdays, Abecrombie allows employers to avoid hiring identifiable Muslims, Jews, and Sikhs by implementing a dress code and remaining silent about its specifics.

* Candidate for Juris Doctor, 2015, Northeastern University School of Law.

1 Equal Opportunity Emp’t Comm’n v. Abercrombie & Fitch Stores, Inc., 798 F. Supp. 2d 1272 (N.D. Okla. 2011), rev’d, 731 F.3d 1106, 1112 (10th Cir. 2013), cert. granted, 135 S. Ct. 44 (2014).

2 Abercrombie, 798 F. Supp. 2d 1272, 1277.

3 Abercrombie, 731 F.3d at 1112.

4 Id. at 1112-13.

5 Abercrombie, 798 F. Supp. 2d at 1276-77.

6 Id.

7 Id.

8 Id. at 1279.

9 Id.

10 Complaint at ¶ 5, Abercrombie, 798 F. Supp. 2d 1272 (N.D. Okla. 2009) (No. 09-CV-602-GKF-FHM).

11 Id. at ¶ 6.

12 Abercrombie, 798 F. Supp. 2d at 1287.

13 Abercrombie, 731 F.3d at 1114-15.

14 Id. at 1115-16.

15 See Petition for Writ of Certiorari at I, Equal Emp’t Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (July 25, 2014) (No. 14-86), available at http://www.justice.gov/osg/briefs/2014/2pet/7pet/2014-0086.pet.aa.pdf.

16 See id. at II.

17 Equal Opportunity Emp’t Comm’n v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 44 (2014).

18 Supreme Court of the United States October Term 2014, Granted and Noted List, Cases to be Argued, Sup. Ct. U.S., http://www.supremecourt.gov/orders/14grantednotedlist.pdf (last visited Feb. 4, 2015).

19 Religious accommodation claims under Title VII are distinct from First Amendment claims brought against public employers, which rely on an analysis of the language and motivation behind the contested policy. See Sami Hasan, Veiling Religion in the Force: The Validity of “Religion-Neutral Appearance” as an Employer Interest, 9 UCLA J. of Islamic & Near E.L. 87, 91 (2010); see also, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986) (military), superseded by statute, National Defense Authorization Act of 1987, Pub. L. No. 100-180, Div. A., Title V, § 508(a)(2), 101 Stat. 1086, as recognized in Alex v. Mabus, No. 1:11CV1207, 2012 WL 2366151, at *6 n.7 (E.D. Va. June 20, 2012); Cooper v. Eugene Sch. Dist. No. 4J, 723 P.2d 298, 308 (Ore. 1986) (public school teachers).

20 Universal Newsreel: Signing of the Civil Rights Act (NBC Universal television broadcast July 2, 1964), available at https://archives.nbclearn.com/portal/site/k-12/browse/?cuecard=1163.

21 Civil Rights Act of 1964, Pub. L. No. 88-352, § 703, 78 Stat. 253, 255 (1964) (“It shall be an unlawful employment practice for an employer -- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion . . . or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status an employee, because of such individual's . . . religion. . . .”).

22 See id.

23 See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71 n.6 (1977) (“From the outset, Congress has said that ‘the purpose of Title VII is to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin.’”) (internal citation omitted).

24 See Richard T. Foltin & James D. Standish, Reconciling Faith and Livelihood: Religion in the Workplace and Title VII, 31 Hum. Rts. 19, 20 (2004).

25 Hardison, 432 U.S. at 72 (citing 29 C.F.R. § 1605.1 (1967)).

26 Id. at 72 (1977) (citing 29 C.F.R. § 1605.1 (1968)).

27 See Dewey v. Reynolds Metals Co., 429 F.2d 324, 331 n.1 (6th Cir. 1970), aff'd by equally divided Court, 402 U.S. 689 (1971); Riley v. Bendix Corp., 330 F. Supp. 583, 588 (M.D. Fla. 1971), rev'd, 464 F.2d 1113 (5th Cir. 1972).

28 An Act to Further Employment Opportunities for American Workers, Pub. L. No. 92-261, § 2, 86 Stat. 103, 103 (1972); Hardison, 432 U.S. at 73.

29 118 Cong. Rec. S705 (daily ed. Jan. 18, 1972) (statement of Sen. Jennings Randolph), available at https://archive.org/details/congressionalrec118aunit; see also id. at 705-06 (“This amendment is intended . . . to resolve by legislation—and in a way I think was originally intended by the Civil Rights Act—that which the courts apparently have not resolved.”).

30 See Civil Rights Act of 1964, §§ 701(j), 703(a)(1); see also Abercrombie, 731 F.3d at 1120 (citing EEOC Compliance Manual § 12–IV).

31 Prerna Soni, Title VII Religious Discrimination and Contemporary Socio-Religious Issues in a Post-9/11 America: The Scope and Shortcomings of Religious Discrimination Protection Under Title VII, 16 U. Pa. J. Bus. L. 599, 607 (2014) (“Often, failure to accommodate claims hinges [sic] on a question about when hardship to an employer becomes ‘undue hardship.’”); see also, e.g., Equal Emp’t Opportunity Comm’n v. GEO Grp., Inc., 616 F.3d 265, 274 (3d Cir. 2010); Webb v. City of Phil., 2007 WL 1866763, *1 (E.D. Pa. June 27, 2007) (unreported); Equal Emp’t Opportunity Comm’n v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006, 1017 (D. Ariz. 2006); United States v. Bd. of Educ. for Sch. Dist. of Phila., 911 F.2d 882, 886 (3d Cir. 1990).

32 See Petition for Writ of Certiorari, supra note 15.

33 Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 447 (7th Cir. 2013); Dixon v. The Hallmark Companies, Inc., 927 F.3d 849, 856 (11th Cir. 2010); see also Brown v. Polk Cnty., Iowa, 61 F.3d 650, 654 (8th Cir. 1995); Heller v. EBB Auto Co., 8. F.3d 1433, 1439 (9th Cir. 1993).

34 Heller, 8 F.3d at 1437.

35 Id. at 1439.

36 Id.

37 Abercrombie, 731 F.3d at 1126.

38 Id. at 1128-31.

39 See id. at 1123, 1135, 1143 (citing Thomas v. Nat'l Ass'n of Letter Carriers, 225 F.3d 1149 (10th Cir. 2000); Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481 (10th Cir. 1989); EEOC Compliance Manual §§ 12–I(A), 12-IV(A)).

40 Abercrombie, 731 F.3d at 1123-31.

41 Id. at 1131.

42 *Id. at 1119.

43 Id.

44 Id. at 1118.

45 Id. at 1121.

46 Id. at 1130 n.11.

47 Id. at 1148 (Ebel, J., dissenting).

48 Id. at 1149.

49 Id. at 1144.

50 See Foltin, supra note 24, at 19.

51 Cf. Sadia Aslam, Hijab in the Workplace: Why Title VII Does Not Adequately Protect Employees from Discrimination on the Basis of Religious Dress and Appearance, 80 UMKC L. Rev. 221, 222 (2012) (“In a climate in which people are increasingly aware of the growing population of American Muslims, the hijab . . . is perhaps one of the most recognizable features of Islam in the United States.”).

52 Cf. Aliah Abdo, The Legal Status of Hijab in the United States: A Look at the Sociopolitical Influences on the Legal Right to Wear the Muslim Headscarf, 5 Hastings Race & Poverty L.J. 441, 441 (2008).

53 See Ishra Solieman, Born Osama: Muslim-American Employment Discrimination, 51 Ariz. L. Rev. 1069, 1087 (2009).

54 Id. at 1082-83.

55 Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987).

56 U.S. Equal Employment Opportunity Commission, Charge Statistics FY 1997 Through FY 2014, http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited Feb. 7, 2015) (4.0% of all EEOC charges filed in FY 2014).

57 Id.

58 Although their numbers are small, Sikhs also are statistically overrepresented. Sikhs comprise approximately 0.03% of the U.S. adult population. See U.S. Census Bureau, Statistical Abstract of the United States 61 (2012), http://www.census.gov/compendia/statab/2012/tables/12s0075.pdf (last visited Jan. 26, 2015) (78,000/228,182,000= 0.00034). However, Sikhs filed 0.39% of all religious discrimination charges with the EEOC between 2002 and 2012. See American-Arab Anti-Discrimination Committee, American-Arab Anti-Discrimination Committee, EEOC Statistical Data: Discrimination and Retaliation Charges Filed by Arab and Muslim Americans (Mar. 25, 2013), http://www.adc.org/fileadmin/ADC/ADCEEOCStatsPressRelease_2013.pdf ((19 + 26 + 12 + 19 + 13 + 13 + 15 + 11 + 11 + 14 + 9) / (4,371 + 4,264 + 4,081 + 3,898 + 3,915 + 2,880 + 3,272 + 3,393 + 3,799 + 4,157 + 3,836)= 162/41,866 = 0.00386).

59 U.S. Equal Employment Opportunity Commission, Charge Statistics FY 1997 Through FY 2013, supra note 56; U.S. Equal Employment Opportunity Commission, Religion-Based Charges Filed From 10/01/2000 Through 9/30/2011, Showing Percentage Filed on the Basis of Religion-Muslim, http://www.eeoc.gov/eeoc/events/9-11-11religioncharges.cfm (last visited Sep. 16, 2014); see American-Arab Anti-Discrimination Committee, supra note 58.

60 Federal Bureau of Investigation, 2012 Hate Crimes Statistics: Incidents and Offenses, http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2012/topic-pages/incidents-and-offenses/incidentsandoffensesfinal (last visited Sep. 23, 2014); U.S. Dep’t of Justice, Confronting Discrimination in the Post-9/11 Era: Challenges and Opportunities Ten Years Later 7-8 (Oct. 19, 2011), *available at* http://www.justice.gov/crt/publications/post911/post911summitreport_2012-04.pdf.

61 Pew Research Center, Muslim Americans: Middle Class and Mostly Mainstream, 9 (May 22, 2007), http://www.pewresearch.org/files/old-assets/pdf/muslim-americans.pdf.

62 U.S. Equal Employment Opportunity Commission, Religion-Based Charges Filed From 10/01/2000 Through 9/30/2011 Showing Percentage Filed on the Basis of Religion-Muslim, supra note 59 (780 / 3,836 = 0.203).

63 Pew Forum on Religion and Pub. Life, U.S. Religious Landscape Survey, 10 (Feb. 2008), http://religions.pewforum.org/pdf/report-religious-landscape-study-full.pdf.

64 See American-Arab Anti-Discrimination Committee, supra note 58 (358 / 3,836 = 0.093).

65 U.S. Equal Employment Opportunity Commission, Religion-Based Charge Statistics FY 1997 Through FY 2014, http://www.eeoc.gov/eeoc/statistics/enforcement/religion.cfm (last visited Feb. 7, 2015).

66 See, e.g., Mohamed A. Elsanousi, A Growing Economic Power: Muslims in North America and Integration and Contribution to Social Justice, 9 J.L. Soc’y 100, 120-21 (2008); cf. Am. Jewish Comm., AJC 2013 Survey of American Jewish Opinion (Oct. 28, 2013), http://www.ajc.org/site/apps/nlnet/content3.aspx?c=7oJILSPwFfJSG&b=8479755&ct=13376311 (reporting that 81% of American Jews believe that anti-Semitism is at least “somewhat of a problem” in the United States).

67 Federal Bureau of Investigation, 2012 Hate Crimes Statistics: Incidents and Offenses, supra note 60 (approximately 60% of all hate crimes motivated by religion targeted Jews and approximately 13% targeted Muslims); U.S. Dep’t of Justice, Confronting Discrimination in the Post-9/11 Era: Challenges and Opportunities Ten Years Later 7-8, supra note 60 (describing the “high rate” of hate crimes targeting Sikhs following the September 11, 2001 attacks); Sikh Coal., Fact Sheet on Post-9/11 Discrimination and Violence against Sikh Americans, http://www.sikhcoalition.org/images/documents/fact%20sheet%20on%20hate%20against%20sikhs%20in%20america%20post%209-11%201.pdf, (last visited Jan. 26, 2015).

68 See, e.g., Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) (striking down as unconstitutional a state constitutional amendment in Elauf’s home state of Oklahoma, which was targeted at Islamic sharia law and had been approved by 70% of voters); Oklahoma City Resident Plans to Challenge Measure on International, Sharia Law, Agency Says, News OK (Nov. 4, 2010), http://newsok.com/oklahoma-city-resident-plans-to-challenge-measure-on-international-sharia-law-agency-says/article/3510963/?page=1 (quoting American Civil Liberties Union official as describing the Oklahoma law as being “used to inflame passions against the Islamic community”); Pew Research Center’s Forum on Religion and Pub. Life, State Legislation Restricting Judicial Consideration of Foreign or Religious Law, 2010-2012 (Apr. 8, 2013), http://www.pewforum.org/files/2013/04/State-legislation-restricting-foreign-or-religious-law1.pdf; Kevin Murphy, Kansas Governor Signs Bill Effectively Banning Islamic Law, Reuters (May 25, 2012), http://www.reuters.com/article/2012/05/25/us-usa-kansas-sharia-idUSBRE84O1DJ20120525; S.J. Res. 14, 2012 Leg., 50th Sess. (N.M. 2012); H.J. Res. 8, 2011 Leg. 61st Sess. (Wyo. 2011).

69 See, e.g., U.S. Equal Employment Opportunity Commission, Religious Garb and Grooming in the Workplace: Rights and Responsibilities, http://www.eeoc.gov/eeoc/publications/qareligiousgarb_grooming.cfm (last visited Sep. 23, 2014) (“If an employer takes an action based on the discriminatory religious preferences of others, including customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. Customer preference is not a defense to a claim of discrimination.”); cf. 29 C.F.R. § 1604.2(a)(1)(iii) (providing that “[t]he refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers” is not a bona fide occupational qualification with respect to sex under Title VII); Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971) (Title VII sex-based discrimination).

70 Soni, supra note 31, at 619-20.

71 See e.g., Equal Emp’t Opportunity Comm'n v. Abercrombie & Fitch Stores, Inc., 966 F. Supp. 2d 949 (N.D. Cal. 2013); Equal Emp’t Opportunity Comm'n v. Abercrombie & Fitch Stores, Inc., No. 4:08CV1470 JCH, 2009 WL 3517578, at 1 (E.D. Mo. Oct. 26, 2009); Gbajabiamila v. Abercrombie & Fitch, Inc., No. 10-CV-740-IEG WMC, 2010 WL 3185499, at *1 (S.D. Cal. Aug. 10, 2010); Burchette v. Abercrombie & Fitch Stores, Inc., No. 08 CIV. 8786 RMB THK, 2009 WL 856682, at * 1 (S.D.N.Y. Mar. 30, 2009); *see also Sean Gregory, Abercrombie Faces a Muslim-Headscarf Lawsuit, Time (Sept. 23, 2009), http://content.time.com/time/business/article/0,8599,1925607,00.html.

72 Abercrombie, 731 F.3d at 1111.

73 See Solieman, supra note 53, at 1084.

74 Soni, supra note 31, at 611-12 n.70 (describing instances in which employers, such as the Walt Disney Company and the New York Metropolitan Transportation Authority (MTA), allegedly enforced policies against hijabs and dastaars but did not enforce policies against tattoos or other headwear).

75 See Hardison, 432 U.S. at 71 n.6.