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Discrimination Case Not Over for Abercrombie & Fitch
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The Supreme Court has ruled that Abercrombie & Fitch may have discriminated against a prospective employee when she was not hired because her headscarf violated company policy.

Summary: The Supreme Court has ruled that Abercrombie & Fitch may have discriminated against a prospective employee when she was not hired because her headscarf violated company policy.

According to the Huffington Post, in an 8-1 ruling, the Supreme Court ruled that trendy clothing retailer Abercrombie & Fitch possibly violated workplace discrimination laws when it refused to hire a Muslim job applicant because she donned a hijab to her interview. Religious beliefs, however, did not come up in the course of the interview. According to the facts of the case, the company felt that the potential employee would not be able to comply with its dress code, which forbade its employees from wearing hats.


Samantha Elauf applied for a sales position at an Abercrombie children’s store in Oklahoma back in 2008 when she was 17 years old. Interview notes reflect that Elauf did well during her interview, but she was not considered for the position because her hijab did not comply with the store’s “look policy,” which prohibits its employees from wearing hats and must promote Abercrombie & Fitch. With assistance from the U.S. Equal Employment Opportunity Commission, Elauf sued.

The Supreme Court accepted the case in October.

Civil rights laws mandate that employers accommodate the religious beliefs of their employees in the workplace. Employers are expressly forbidden from firing or refusing to hire an individual because of religious beliefs. Abercrombie argued that it did not know it needed to make such an accommodation because Elauf did not request one.

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However, the court was not convinced by Abercrombie’s arguments. Instead of determining whether the company had firm knowledge of Elauf’s need for an accommodation, the court stated that the issue was whether Elauf’s headscarf was a “motivating factor” in the decision not to hire her. The facts showed that a manager of the store assumed Elauf was Muslim, and that she would be wearing her hijab while working.

Justice Antonin Scalia opined, “Motive and knowledge are separate concepts. [A]n employer who acts with the motive of avoiding accommodation may violate [the law] even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

The court remanded the case, meaning that it will be sent back down to a lower court for additional consideration. Justice Clarence Thomas was the sole dissenter, drafting an opinion that partially concurred with the court’s decision.

According to NPR, in previous rulings, the U.S. District Court ruled in favor of Elauf and awarded her $20,000 in damages. However, the 10th Circuit Court of Appeals reversed that decision, ruling that an employer cannot be held liable under Title VII of the Civil Rights Act for failing to accommodate a religious practice unless the employer had actual knowledge of the need for such an accommodation. That decision was also appealed, and the Supreme Court agreed to take the case.

In a statement, Abercrombie pointed out that the Supreme Court did not find that the company engaged in discrimination, but only that Elauf may pursue her claim in court. Abercrombie said that it is considering its next steps in the legal proceeding, and that it is committed to “an open-minded and tolerant workplace environment.”

Abercrombie added, “We have made significant enhancements to our store associate policies, including the replacement of the ‘look policy’ with a new dress code that allows associates to be more individualistic; changed our hiring practices to not consider attractiveness; and changed store associates’ titles from ‘Model’ to ‘Brand Representative’ to align with their new customer focus.”

Attorneys for Abercrombie also argued that ruling for Elauf would pressure companies to ask or make assumptions about an individual’s religious beliefs, which is a risky undertaking, since employers are not supposed to ask employees about their religion. However, the EEOC argued that an applicant, such as Elauf, should not have to bear the entire burden of seeking a religious accommodation, especially since the employer would know whether a conflict with company policy exists.

EEOC’s general counsel, David Lopez, supported the court’s ruling in a statement. “At its root, this case is about defending the quintessentially American principles of religious freedom and tolerance. This decision is a victory for our increasingly diverse society and we applaud Samantha Elauf’s courage and tenacity in pursuing this matter.”



How will the revised religious freedom law impact discrimination claims?

During oral arguments in February, Justice Samuel Alito, one of the more conservative justices, posited the following scenario to the court: “So the first is a Sikh man wearing a turban. The second is a Hasidic man wearing a hat. The third is a Muslim woman wearing a niqab. The fourth is a Catholic nun in a habit. Now, do you think…that those people have to say, ‘We just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement’?”

Alito admitted that the scenario sounded “like a joke.”

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Alito added that there were other ways for an employer to address these concerns without asking directly about religion. He said, “Why can’t the employers just simply say, ‘We have a “look policy” that doesn’t permit beards. Can you comply with that policy?’”

According to Politico, Thomas argued that the majority’s interpretation of Title VII was too broad, and that the store’s “look policy” was “neutral.” Thomas wrote, “Merely refusing to create an exception to a neutral policy for a religious practice cannot be described as treating a particular applicant ‘less favorably’ than others.’”

On at least two other occasions, Abercrombie has been sued over headscarves. In one case, an applicant stated that, like Elauf, she was not chosen for a job because of her headscarf. Another employee argued she was fired when she refused to remove hers while working. Abercrombie settled these cases and now allows employees to wear headscarves.

Read about Hani Khan, who was fired when she refused to remove her headscarf, here.

In briefs filed with the Supreme Court, Abercrombie was supported by the U.S. Chamber of Commerce, while civil, religious, and gay rights groups advocated for Elauf.

Source: Huffington Post

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