U.S. Supreme Court to Hear Oral Argument This Week in Abercrombie Discrimination Case

Another year has begun and it seems like the debate over Abercrombie and Fitch’s employee dress code policy shows no indication of stopping. Only this time – the U.S. Supreme Court is getting involved.

By way of brief background, the case began in 2008, when Samantha Elauf applied for a sales associate position with Abercrombie Kids in Tulsa, Oklahoma. Elauf wore a hijab, a traditional headscarf worn by Muslim women, to her initial interview. Although Abercrombie’s hiring manager, Heather Cooke, originally believed that Elauf was wearing the hijab for religious purposes, she did not ask about religion during the interview and Elauf did not bring up the subject either. Cooke initially gave Elauf a score recommending her for hire. However, soon after the interview finished, Cooke contacted her district manager about Elauf’s hijab. During this conversation, the district manager allegedly informed Cooke that employees were not allowed to wear “hats” on the sales floor because it violated Abercrombie’s “Look Policy,” and that Elauf should not be hired. As a result, Cooke lowered Elauf’s “appearance and sense of style” score and Abercrombie did not offer her a job.

In 2009, the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal discrimination law (the “EEOC”) sued on Elauf’s behalf for religious discrimination in violation of Title VII, a federal law that prohibits discrimination based on religion and requires employers to reasonably accommodate workers’ religion-based requests as long as the request does not cause an undue hardship on the employer. Undue hardship exists if a religious accommodation would cause an employer to lose money that is “more than de minimus.”

In response to the filing of this lawsuit, Abercrombie argued that Elauf did not specifically request a religious accommodation and, therefore, one was not required, despite Cooke’s assumption that Elauf wore the scarf for religious purposes. Abercrombie specifically argued that “[i]t is axiomatic that an employer must have actual notice that an applicant’s mandatory religious practices conflict with an employment requirement.”

The EEOC countered, stating that by requiring “actual knowledge” of an employee’s religious beliefs by employers, employers would be free to discriminate based on perceived religious practices, as long as the employee did not make an express statement. According to the EEOC, this would create a loophole in the law that does not comport with the purpose of Title VII, namely, to prohibit religious discrimination.

A federal district court ruled in favor of the EEOC. However, the U.S. Circuit Court of Appeals for the Tenth Circuit reversed and ruled in favor of Abercrombie. The Tenth Circuit reasoned that Elauf was unable to establish a prima facie case of religious discrimination, specifically, that she had a bona fide religious belief that conflicted with the employer’s requirements; informed the prospective employer of the conflicting belief; and was not hired because of the conflict. "Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie's clothing policy," the decision states.

The U.S. Supreme Court is set to hear oral argument this week and will consider whether the accommodation requirements of Title VII are triggered only when the employee or applicant identifies a potential conflict or whenever the employer acts on the basis of a perceived conflict.

Employers should pay close attention to this case, as it has the ability to have significant practical as well as legal implications. For example, depending on which way the high court rules, employers may need to review, and if necessary, revise their interview procedures and provide training to interviewers on how to properly conduct an interview in light of these heightened Title VII standards.

If you or your institution has any questions or concerns regarding employment related issues, please contact James G. Ryan at jryan@cullenanddykman.com or at 516-357-3750.

Thank you to Lauren Dwarika, an intern at Cullen and Dykman, for her assistance with this blog post.