The decision
by U.S. District Court Judge Gregory Frizzell, granting summary judgment to the
Equal Employment Opportunity Commission (EEOC) was reversed by the U.S. Court
of Appeals on October 1, 2013. The Tenth
Circuit disagreed with the District Court's determination that Abercrombie & Fitch violated Title
VII of the Civil Rights Act of 1964, by failing to provide a reasonable religious accommodation to a Muslim
woman.
The Tenth Circuit held that
Abercrombie was instead entitled to summary judgment because there was no
genuine dispute of material fact. The
court focused on the fact that the applicant never informed Abercrombie prior
to its hiring decision that her practice of wearing a hijab was based on her
religious beliefs and that she would need an accommodation because of the
conflict with Abercrombie’s clothing policy.
Abercrombie
has a “Look Policy” intended to promote the Abercrombie brand. Abercrombie claims
that its Look Policy is critical to its “preppy” and “casual” brand as it does
very little advertising through traditional media outlets. Abercrombie asserted that a sales-floor
employee who violates the Look Policy by wearing inconsistent clothing will
cause consumer confusion, will fail to perform an essential function of the sales-floor
employee position, and ultimately damage the brand.
In 2008, the
then 17-year-old, Samantha Elauf, applied for a job at Abercrombie Kids in
Tulsa, Oklahoma. Prior to her interview,
Ms. Elauf asked a friend who worked at Abercrombie whether wearing a hijab to
work was permissible. The friend inquired and communicated to Ms. Elauf that it
should not be a problem. Ms. Elauf wore
an Abercrombie T-shirt, jeans and a black hijab to her interview. During the interview the assistant manager never mentioned the Look
Policy by name but did describe the dress requirements. Ms. Elauf never
informed the assistant manager that she was Muslim, never brought up the
subject of the headscarf, or that she wore the headscarf for
religious reasons. The interview went fairly well, and she was rated by the assistant manager as eligible for hire.
Following
the interview, the assistant manager sought approval from a senior manager in
evaluating Ms. Elauf for the position. A district manager
determined that Ms. Elauf should not be hired because she wore a headscarf, which was
a clothing item that was inconsistent with the Look Policy. The Look Policy prohibited
employees from wearing black clothing and “caps.” However, the policy did not
explain the meaning of the term “cap.”
The EEOC
sued on Ms. Elauf’s behalf, alleging violations of Title VII. The compliant stated that Abercrombie
refused to hire her because she wore a hijab, and failed to accommodate her
religious beliefs by making an exception to the Look Policy. The U.S. District Court agreed, granting
summary judgment to the EEOC after finding that Abercrombie and Fitch failed to
produce sufficient evidence to dispute the EEOC’s claims.
Title VII’s regulations impose an obligation
on the employer “to reasonably accommodate the religious practices of an
employee or prospective employee, unless the employer demonstrates that
accommodation would result in undue hardship on the conduct of its
business.” However, Title VII’s regulations are only imposed after an employer is put on
notice of the need for a religious accommodation. The Tenth Circuit found that not only did Ms. Elauf never
inform Abercrombie before its hiring decision that her practice of wearing a
hijab was based on her religious beliefs and that she needed an accommodation,
the hijab was not discussed at all. Therefore,
the appeals court determined that the EEOC failed to establish its case under
Title VII’s religion-accommodation theory.
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