The Equal Employment Opportunity Commission is seeking an en banc rehearing of a case in which an appellate court ruled that retailer Abercrombie & Fitch Stores did not violate discrimination law when it failed to hire a job applicant who had not informed the company her Muslim religion required her to wear a hijab.

The 10th U.S. Circuit Court of Appeals in Denver had ruled in favor of the New Albany, Ohio-based company in a 2-1 ruling in October. The panel's ruling said 17-year-old Samantha Elauf, who had applied for a job as a sales floor employee in the company's Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Okla., had failed to inform the company prior to its hiring decision that her practice of wearing a hijab was based on her religious belief, and that she would need an accommodation for the practice because it conflicted with Abercrombie's clothing policy.

The EEOC provided three reasons to support its request for an en banc hearing, in a brief submitted to the court Wednesday:

• The majority's decision raises “a question of exceptional importance” because it creates a conflict with other appellate rulings.

• The ruling's “rigid definition of the notice element” conflicts with rulings of the Supreme Court and the 10th Circuit, each of which requires flexible interpretations.

• The ruling conflicts with the 10th Circuit's own recognition that it is illegal for an employer to take an adverse action against an individual based solely on his religious practice without attempting to accommodate him or her, assuming it could have done so without undue hardship.

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Commenting on the EEOC’s petition, Gerald L. Maatman Jr., partner with law firm Seyfarth Shaw L.L.P. in Chicago, said he gives the agency little chance of success in being granted an en banc rehearing of the case.

Among other reasons, he said, the panel’s ruling was a “very well-reasoned opinion and reading of Title VII” of the Civil Rights rights Act of 1964. Furthermore, “I think the EEOC tends to just appeal or move for a rehearing whenever they lose, rather than being selective about these issues,” he said.