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Retailer’s Employee Dress Policy in Violation of Religious Anti-discrimination Law

The U.S. Supreme Court ruled against Abercrombie & Fitch in a recent decision surrounding the retailer’s “Look Policy” prohibiting any type of headwear. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015). The case stemmed from the company’s decision to reject a job applicant whose headscarf, which she wore in observance of her Muslim religious beliefs, was deemed to violate the company’s dress code. The lawsuit was initiated in 2009 by the Equal Employment Opportunity Commission (EEOC), on behalf of Samantha Elauf, in the U.S. District Court for the Northern District of Oklahoma.

The case of Ms. Elauf was not the only instance when the Abercrombie & Fitch “Look Policy” came under scrutiny for its potential conflict with an individual’s religious beliefs. In U.S. Equal Employment Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 966 F. Supp. 2d 949 (N.D. Cal. 2013), the EEOC challenged the company “Look Policy” as related to another employee, Umme–Hani Khan, who was also wearing a headscarf in observance of her Muslim religious beliefs. Ms. Khan, who wore a headscarf at the time of her job interview, was hired at one of the Abercrombie & Fitch stores. Id., 966 F. Supp. 2d 954-955. The store managers and local supervisors did not object to the headscarf as long as it matched company colors, and they did not inform Ms. Khan that it may violate the company dress code. Id. However, when a district manager visited the store and noticed Ms. Khan’s headwear, he contacted Human Resources. Id.

Subsequently, Human Resources informed Ms. Khan that her headscarf was in violation of the company “Look Policy” and requested that she remove it during work hours. Id. Ms. Khan refused and stated that she was wearing the scarf in accordance with her religious beliefs. Id. The company first suspended and ultimately terminated Ms. Khan for her refusal to remove the headscarf while at work. Finding that Abercrombie & Fitch had not shown that it would have suffered any undue hardship in accommodating Ms. Khan’s religious beliefs, the U.S. District Court for the North District of California ruled that the retailer discriminated against Ms. Khan in violation of Title VII of the Civil Rights Act when the company terminated her employment for wearing a headscarf. Id., 966 F. Supp. 2d 965.

In another case, EEOC. v. Abercrombie & Fitch Stores, Inc., No. 2013 WL 1435290 (N.D. Cal. Apr. 9, 2013), the company refused to hire Halla Banafa, a practicing Muslim. Ms. Banafa also attended her job interview wearing a headscarf, and the interviewer specifically asked her if she was Muslim and had to wear a headscarf, which Ms. Banafa confirmed. Id., at 4. The Court denied the retailer’s motion for summary judgment seeking dismissal of the case. In light of the interviewer’s specific questions related to Ms. Banafa’s religion and reason for wearing the headscarf, the Court found the company’s reason to deny Ms. Banafa the job questionable. Id., at 10.

The two cases pending in the U.S. District Court for the Northern District of California, related to the claims of Ms. Khan and Ms. Banafa, respectively, were ultimately settled out of court early on, and those two court cases were closed. The third case, pertaining to Samantha Elauf, remained pending and it ultimately reached the U.S. Supreme Court.

Ms. Elauf had applied for a position with Abercrombie & Fitch and wore a headscarf at her job interview. Abercrombie & Fitch Stores, Inc., 798 F. Supp. 2d 1272, 1277 (N.D. Okla. 2011). The store’s assistant manager who interviewed Ms. Elauf found her to be qualified for the position. However, the assistant manager was concerned that Ms. Elauf’s headscarf may violate the company’s “Look Policy” because of the head covering. Unlike the case of Halla Banafa, Ms. Elauf’s headscarf or her religion were not discussed during the job interview at all. Nevertheless, the store manager assumed Ms. Elauf was Muslim and that she wore the headscarf due to her religious beliefs. Id.

The assistant manager sought clarification from the company and conferred with the district manager by telling him that she believed that Ms. Elauf was wearing the headscarf for religious reasons. The district manager concluded that the headscarf would violate the “Look Policy,” as would any other type of headwear. Id., 798 F. Supp. 2d 1278. Ms. Elauf was ultimately rejected for the position. Id. The EEOC brought the lawsuit in the U.S. District Court for the Northern District of Oklahoma, claiming that Abercrombie & Fitch engaged in religious discrimination in violation of Title VII.

At the District Court level, Abercrombie & Fitch challenged the validity of EEOC’s claims on several grounds. First, the retailer argued that Ms. Elauf’s use of a headscarf was for cultural, not religious reasons, because the Quran does not command women to wear headscarves. Id., 798 F. Supp. 2d 1283. The District Court rejected this argument because the “broad definition of ‘religion’ does not require that a belief have a textual basis.” Id.

Next, the company challenged the validity of the religious discrimination claim because, it argued, Ms. Elauf’s beliefs were not sincere. Id., 798 F. Supp. 2d 1284. Abercrombie & Fitch based this argument on the fact that Ms. Elauf did not know the address of the mosque, did not pray five times per day or every day, and did not attend Friday service regularly. Id. The District Court rejected this argument as well, finding that the “focus must be on the sincerity of Elauf’s belief that she must wear a head scarf – not whether she observed all tenets of the Muslim faith….” Id.

Abercrombie & Fitch also argued that it did not discriminate because Ms. Elauf did not inform the interviewer that she had a religious belief that conflicted with the “Look Policy” and for which she would have needed a reasonable accommodation. Therefore, the company argued that it could not have discriminated because it did not actually know about her religious beliefs. Id., 798 F. Supp. 2d 1285. The Court nevertheless found that the company had enough notice, judging by the fact that Ms. Elauf wore the headscarf at the interview and that the assistant manager assumed it was due to a religious belief. Id., 798 F. Supp. 2d 1286. As the company was unable to show that accommodating Ms. Elauf’s religious beliefs would have caused undue hardship, the District Court found for the EEOC on the liability issue. The Court then held a trial to assess damages, and the jury awarded $20,000 in compensatory damages.

Abercrombie & Fitch appealed. The 10th Circuit Court of Appeal found for the company and ruled that, in order for the EEOC to prevail on the religious discrimination claim, Ms. Elauf would have needed to inform the interviewer about her religious beliefs and affirmatively request an accommodation. EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1111 (10th Cir. 2013). Since the evidence was undisputed that Ms. Elauf did not spell out or personally communicate her beliefs and the need for an accommodation to the retailer, the Appellate Court reversed the District Court’s decision and remanded the case so that judgment may be entered in favor of Abercrombie & Fitch. Id., 731 F.3d 1143.

The EEOC petitioned the U.S. Supreme Court, which accepted the case for review and heard oral arguments in February 2015. In June 2015, the Supreme Court issued its ruling in which it disagreed with the Appellate Court’s position that “actual knowledge” of Ms. Elauf’s religious belief was required. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015). Instead, the Supreme Court stated that the Plaintiff need only show that the “need for an accommodation was a motivating factor in the employer’s decision.” Id.

The Supreme Court found that “an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” Id., 135 S. Ct. 2033. The Court then declared that “the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Id. In an 8-1 vote, the Supreme Court reversed the Appellate Court decision and remanded the case back to the 10th Circuit for further proceedings. The parties subsequently settled out of court.

The EEOC has been actively pursuing litigation against U.S. employers in recent years for religious discrimination issues surrounding their dress policies. A few examples are: EEOC v. Shadescrest Health Care Center (challenging a nursing home’s decision to terminate a recently hired nurse allegedly over the employee’s refusal to stop wearing the hijab at work due to her religious beliefs; Case No. 14-cv-1253 in the U.S. District Court for the Northern District of Alabama); EEOC v. Family Foods, Inc. d/b/a Taco Bell (the EEOC challenged the alleged failure to accommodate long hair worn pursuant to employee’s Nazirite religious beliefs; Case No. 11-cv-394 in the U.S. District Court for the Eastern District of North Carolina); EEOC v. Red Robin Gourmet Burgers, Inc. (the EEOC challenged the employer’s refusal to accommodate an employee whose religious beliefs precluded him from covering his Kemetic religious tattoos, which the company deemed in violation of its dress code; Case No. 04-cv-1291, U.S. District Court for the Western District of Washington); see also EEOC v. Lawrence Transportation Systems (settlement on behalf of applicant for storage company who was not hired allegedly due to his Rastafarian dreadlocks; Case No. 10-cv-1997, Western District of Virginia). These cases were either settled out of court or have reached a consent decree favorable to the employee.

In light of the EEOC’s continued efforts regarding religious discrimination in workplace, and in light of the recent Supreme Court decision in EEOC v. Abercrombie & Fitch, employers are urged to revisit their policies and procedures to ensure they are willing and able to accommodate the religious beliefs of their current or prospective employees. If you would like additional information or assistance in reviewing your company policies and procedures, please do not hesitate to contact us.

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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