NSBA and Leading State and Local Government Organizations Ask U.S. Supreme Court to Reject New EEOC “Standard” in Religious Discrimination Cases

January 29, 2015

Alexandria, Va. (Jan. 29, 2015) — The National School Boards Association (NSBA) joined a “friend of the court” (amicus) brief filed today by the leading state and local government organizations asking the High Court to affirm the Tenth Circuit decision in Equal Employment Opportunity Commission (EEOC) v. Abercrombie & Fitch, that an employer is not liable under federal law for failing to provide a religious accommodation to a prospective employee who did not ask for an accommodation. 

In their brief, NSBA and the state and local government groups argue that the EEOC is asking the Court to adopt a rule that will require employers to guess or rely on stereotypes to determine whether a current or prospective employee needs an accommodation based on the individual’s religious beliefs or practices.  Previous EEOC guidance directed employers not to engage in stereotyping and required accommodation only when employees had asked for it.

The case involves a woman’s claim that retailer Abercrombie & Fitch discriminated against her on religious grounds when it decided not to hire her. The woman, who had worn a head scarf to her interview, never told Abercrombie & Fitch that she wore the head scarf for religious reasons or that she needed an accommodation with respect to the retailer’s employee appearance policy.

 “School boards, collectively the largest employer in the nation, are committed to policies that promote workplaces free of religious discrimination,” said NSBA Executive Director Thomas J. Gentzel.  “Requiring them to guess about the religious accommodation needs of their employees is not good public policy either for the employer or the employee.”

Under the EEOC’s new approach, employers would face a “Catch-22” situation, risking potential claims under other anti-discrimination laws for asking questions based on assumptions and stereotypes. Such inquiries into prospective employees’ religion are particularly troubling for government employers, who are obligated to uphold the First Amendment’s Establishment Clause.

“The EEOC’s reversal of its position places school boards in an untenable position, inviting the very act that federal law was designed to prevent: discrimination on the basis of religious stereotyping,” said NSBA Associate Executive Director and General Counsel Francisco M. Negrón, Jr.  Negrón added, “The EEOC’s unworkable rule presumes that every applicant would welcome an employer’s potentially discriminatory inquiry into their religious beliefs.”

Seven state and local government leaders in addition to NSBA filed the joint brief. Co-signatories include the National Conference of State Legislatures, the National League of Cities, the U.S. Conference of Mayors, the National Association of Counties, the International City/County Management Association, the International Municipal Lawyers Association, and the International Public Management Association for Human Resources.

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The National School Boards Association (NSBA) is the leading advocate for public education and supports equity and excellence in public education through school board leadership. NSBA represents state school boards associations and their more than 90,000 local school board members throughout the U.S. Learn more at:

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