OPINION: In High Court Hijab Case, Reversal Is Likely

Law360, New York (February 25, 2015, 6:47 PM EST) -- The U.S. Supreme Court is virtually certain to reverse the Tenth Circuit's 2013 holding that an employer can't be liable for failing to hire a job applicant based on religious practice unless the applicant has preemptively asked for an accommodation.

How can we be sure of this outcome? For starters, on Feb. 25, 2015, in oral arguments for U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., not even the employer's attorney cared to defend the lower court's position — a position that Justice Stephen Breyer caustically characterized as "unless you receive direct, explicit notice [of a need for accommodation],...

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