Category Archives: Clothing policies

BREAKING NEWS: ABERCROMBIE AND FITCH DRESSED DOWN BY SUPREME COURT IN MUSLIM HEADSCARF CASE

Today, the US Supreme Court held that clothing store Abercrombie and Fitch could be held liable for its neutral, even-handed application of a policy prohibiting head ware.

The decision is a lesson for employers:  when a person seeks a religious or other accommodation, applying a policy in a neutral manner can still be a violation of Title VII, which grants special treatment for certain classes of employees.

 

WHERE ABERCOMBIE AND FITCH WENT WRONG

Abercrombie & Fitch Stores, Inc., operates several lines of clothing stores, each with its own “style.” Consistent with the image Abercrombie seeks to project for each store, the company imposes a Look Policy that governs its employees’ dress. The Look Policy prohibits “caps”—a term the Policy does not define—as too informal for Abercrombie’s desired image.

Samantha Elauf is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf. She applied for a position in an Abercrombie store, and was interviewed by Heather Cooke, the store’s assistant manager. Using Abercrombie’s ordinary system for evaluating applicants, Cooke gave Elauf a rating that qualified her to be hired; Cooke was concerned, however, that Elauf ’s headscarf would conflict with the store’s Look Policy.

Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap.” When this yielded no answer, Cooke turned to Randall Johnson, the district manager. Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith. Johnson told Cooke that Elauf ’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.

THE EEOC SUES ABERCROMBIE AND FITCH AND OBTAINS A SUPREME COURT VICTORY

The EEOC sued Abercrombie on Elauf ’s behalf, claiming that its refusal to hire Elauf violated Title VII.  After winning in the trial court, the EEOC lost before the court of appeals.  Today, the US Supreme Court reinstated the EEOC’s initial victory, ruling that:

“The rule for disparate-treatment 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. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

The Supreme Court rejected Abercrombie’s argument that its neutral policy — which treated Muslims and non-Muslims alike — was lawful:

“Abercrombie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts.  But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices.  Rather, it gives them favored treatment, affirmatively obligating employers not “to failor refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.”  An employer is surely entitled to have, for example, a no headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] ofreligious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy.  Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”

CONCLUSION

For employers, applying a clothing or other policy in a neutral manner may still be a violation of the law when there is a requirement to accommodate.

Therefore, ALWAYS determine whether there is a duty to accommodate before woodenly applying any employment policy.