Written by Joel Nolan.
A federal court in Oklahoma recently found an Abercrombie Kids store (a brand of Abercrombie & Fitch Stores, Inc.) liable for religious discrimination because the store did not hire a Muslim applicant who wore a headscarf during a job interview. Interestingly, the court found for the EEOC on summary judgment meaning that, as a matter of law, there was no possible way a jury could have found that Abercrombie had not discriminated against the applicant. A jury will be empanelled to determine damages.
Abercrombie stores follow a “Look Policy” that requires sales employees (called “models”) to dress in clothes consistent with clothes and shoes sold in the store, prohibits employees from wearing caps, and in other ways requires models to embody the Abercrombie brand. Applicants are not required to comply with the Looks Policy when they interview, but must do so if hired.
Teenager Samantha Elauf, a Muslim who always wore a headscarf (a hijab) in public as a symbol of her faith and of modesty, applied for a job as a model at an Abercrombie Kids store. She was called in for an interview, to which she wore a black hijab. Although Ms. Elauf and her interviewer, Heather Cooke, did not discuss Ms. Elauf’s hijab, Ms. Cooke assumed the scarf was worn for religious purposes and that Ms. Elauf might need an accommodation under the Looks Policy to be able to wear the scarf to work. Ms. Cooke believed that Ms. Elauf was a good candidate for a model position but, because she was unsure whether Abercrombie would grant an exception to the Look Policy, she consulted with her manager. Ms. Cooke’s manager was also unsure, and he directed her to his manager, Randall Johnson. Mr. Johnson told Ms. Cooke to downgrade her evaluation of Ms. Elauf and not to hire her. Ms. Elauf complained to the Equal Employment Opportunity Commission, which sued on her behalf.
Abercrombie first argued that Ms. Elauf was not a devout Muslim and that she did not wear the headscarf due to a sincerely held religious belief. The Court disagreed. Next, Abercrombie argued that because Ms. Elauf did not tell Abercrombie during the interview that she wore the hijab for religious purposes or that she would need an exception to the Look Policy if hired, it had no duty to accommodate her religious belief. Again, the Court disagreed. Finally, Abercrombie argued that making an exception to its Look Policy for Ms. Elauf would have posed an undue hardship because Abercrombie relies on its in-store models to establish its brand identity. It argued that Ms. Elauf’s black hijab would have appeared “off brand” to Abercrombie’s target market and impact the store’s ability to communicate its brand to that market. But, Abercrombie conducted no studies and cited no specific examples to corroborate its assertion.
Again, the Court disagreed, noting that Abercrombie even failed to consider its own past exceptions to the Look Policy. More specifically, in and since 2006, Abercrombie had allowed employees in other stores to wear headscarves, long skirts, bracelets, and yarmulkes for religious reasons. And, even after it rejected Ms. Elauf’s application because she wore a headscarf, Abercrombie allowed eight or nine more headscarf exceptions to its Look Policy. The Court was evidently not impressed by Abercrombie’s failure to consider its own past practices, and found that it had failed to show that a headscarf exception would have caused an undue hardship in this case.
In light of the facts in this case—especially those regarding Abercrombie’s failure to evaluate its past practices and substantiate its brand identify arguments—this decision is not surprising. This case also reflects a rising number of cases filed with the EEOC by Muslim workers alleging religious discrimination.