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By:  Rob Dare and Bill Pilchak – 6/4/15

On Monday, June 1, 2015 the U.S. Supreme Court ruled that Abercrombie & Fitch unlawfully discriminated against a teenage Muslim applicant when it refused to hire her because her religious headscarf (“hijab”) violated the store’s dress policy. To those of us who defend discrimination cases, the big questions were: How did Abercrombie think it could win? And, why wasn’t this case settled?

An assistant manager interviewed Samantha Elauf and rated her qualified to be hired, but was concerned that Elauf’s headscarf would conflict with the store “Look Policy.” She contacted the district manager, told him that she believed Elauf wore the headscarf for religious purposes and was instructed not to hire Elauf because her headscarf (or any headwear, religious or not) would violate the policy. At no point did the store inquire whether Elauf wore the headscarf based on her faith. The subject never came up in the interview either. The EEOC brought suit against Abercrombie for religious discrimination under Title VII. This necessarily means that Abercrombie declined to resolve the case in the conciliation process after the EEOC found cause to believe discrimination had occurred.

The district court granted summary judgment to the EEOC (meaning that Abercrombie lost the case without a trial) and awarded Elauf $20,000 in damages. However, Abercrombie appealed this modest award and the Tenth Circuit Court of Appeals (Denver) reversed, holding that an applicant must advise the employer that her inability to comply with the employer’s requirement results from a religious practice. Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The narrow question before the Supreme Court was “whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.” Abercrombie argued that it could not have discriminated against Elauf without “actual knowledge” of the applicant’s need for an accommodation.

Rejecting this argument, the Supreme Court held that the rule for 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.

One wonders why Abercrombie did not resolve this case early on, given the facts. Management-side attorneys generally consider the prospect of solidifying law adverse to employers when litigating. Personally, we believe Abercrombie was doomed to failure, based upon:

  • Of course the applicant’s religious practices were considered: Not only did the managers specifically discuss that prospect, but there would be no basis to assume that the applicant would wear a scarf to work every day, unless there were some obligation to do so.
  • Did Abercrombie really believe an applicant should specifically raise her religion – a subject that should otherwise never be mentioned during an interview- in the absence of any stated concern by the employer?

What does this mean for employers?

Title VII requires employers to accommodate religious practices, including articles of clothing, facial hair and grooming practices unless doing so would constitute an undue hardship. The bar for “undue hardship” is actually quite low. For example, an operation need not change the nature of its operation to accommodate religious practices: A strip club would not be required to hire a woman required to wear a burka for an exotic dancer position. However, from the photo shown at the top of this item, a woman can be stylish while wearing the hijab and Abercrombie’s policy will not prevail over the duty to accommodate. Because of the risk of litigation, employers are encouraged to consult with counsel when resisting accommodation for undue hardship reasons.

           Ideally, those who conduct employee interviews should be cognizant of clothing and grooming mandated by religious practices. Here is a short (and not necessarily complete) list: Yarmulkes and ear-locks (Jewish); Hijabs, burkas, beards (Islamic); Turbans, long hair, beards (Sikhs); Dreadlocks (Rastifanis); Crosses (Christian). When interviewers encounter an applicant whose present appearance clashes with company policy, the employer should engage in an interactive process with the applicant to determine if the present garb or grooming can be changed or is required. For example, the Abercrombie assistant manager could have said to Elauf: “we have a company policy against wearing any headwear. Would you be able to comply with that policy or need an accommodation?” Often, accommodation can be accomplished through creative means. (For example, one employer met religious objections to wearing Santa hats by allowing those employees to wear red baseball caps.)

          There are limits to the accommodation requirement beyond the “hardship” defense noted above. The applicant/employee must actually hold the religious beliefs that require the garb/grooming. So, other Abercrombie employees could not start wearing hats based on Elauf’s precedent. Moreover, religiously garbed applicants may be rejected for legitimate, non-discriminatory reasons. (Our firm defended a similar claim against a high-profile fast food company by an applicant who brought her mother to the job interview.) Also, as illustrated by that same case, the employer need not create religious garb as part of its uniform.