SPH-B-2On its face EEOC v. Abercrombie & Fitch, which was recently argued before the Supreme Court, doesn’t have much to do with the ADA and FHA. It has been generally reported as a case concerning religious discrimination, and seems to have little to do with disabilities. Despite this, the Court’s ruling could have a significant impact on how employers and public accommodations handle reasonable accommodation requests. Putting aside the legalese, the question before the Court is whether “don’t ask, don’t tell” is a reasonable way to deal with those whose religious beliefs, or disabilities are not obvious.

The facts are reasonably straightforward. The complaining party, a young Muslim woman, wore a headscarf to her interview for a job at Abercrombie & Fitch. The headscarf violated the Abercrombie & Fitch policy concerning personal appearance and so, without any explicit discussion of its religious significance, the hiring manager decided not to hire her. If she had said the scarf had religious significance Abercrombie & Fitch would have at least considered how to accommodate it, but the subject never came up. However, the manager suspected it was religious dress, and told her boss of her suspicion. He recommended that she not be hired. The EEOC argues, in essence, that if you suspect a religious dimension to a person’s appearance you need to look for an accommodation. Abercrombie & Fitch retorts that it shouldn’t be required to ask and only has to look for an accommodation if there is an explicit request.

Frankly, it seems bizarre that Abercrombie & Fitch made a hiring decision based on the woman’s appearance at her interview without asking whether she intended to wear the scarf to work, a question that would have made the religious question explicit. The District Court, which ruled for the EEOC, may have suspected that Abercrombie & Fitch didn’t want to know because ignorance allowed it to discriminate without appearing to discriminate. After all, the Abercrombie & Fitch’s brand image is based on the “preppy look of the Ivy League,” and a Muslim headscarf doesn’t have that WASP image associated with the Ivy League. However, those kinds of factual considerations are left behind at the Supreme Court level.

So, the question before the Supreme Court is who goes first when there is a suspicion that the individual is engaging in protected behavior, and that is a situation that arises often in ADA cases. When disabilities are not obvious, as with many mental disabilities, the person who needs an accommodation may be reluctant to raise the issue. An employer or public accommodation faced with, for example, a service animal, may be equally reluctant to ask and risk embarrassing a customer, or to ask and be accused of unfairly inquiring about a protected matter. There are regulations in place that answer these questions, but the front line of dealing with customers and employees is often a person with little training in ADA or any other kind of discrimination.

Since the Supreme Court has not yet ruled we don’t know how its final decision will affect matters of religious discrimination or exactly how its ruling will trickle down to matters of disability discrimination. What we do know is that matters concerning reasonable accommodations are often the source of litigation, and lower courts are not uniform in dealing with them. (See, for example, the discussion in Henrietta D. v. Bloomberg, 331 F.3d 261 (2nd Cir. 2003). For that reason an authoritative ruling in EEOC v. Abercrombie & Fitch is likely to be influential in cases of disability discrimination that involve accommodation of a non-obvious disability.

There is also an immediate lesson for those who would rather not find out from a judge just what this all means. If you suspect that an employee or customer needs an accommodation based on a disability, go ahead and find out before you act. The DOJ specifically allows businesses to ask customers with service animals whether they are disabled and the animal helps with the disability. The EEOC has a more complex system of inquiries about disabilities that is tied to the hiring process, but ultimately the question of whether an accommodation is needed because of a disability can be made explicit without violating the law. Decisions based on guess-work are likely to lead to misunderstandings, and misunderstandings are the seeds of litigation. “Don’t ask, don’t tell” may turn out to be o.k., bur it is a policy made to create lawsuits.

An even more influential non-ADA case is the subject of William Goren’s blog this week. I highly recommend that readers check it out using the link on the right hand column of this page.