When The Dress Code Does Not Match Religious Practice: The Abercrombie Case

American youth fashion recently crossed paths with a fundamental civil rights law in a case that garnered national attention.  On June 1, 2015, the United States Supreme Court found that Abercrombie & Fitch Stores, Inc. violated Title VII of the Civil Rights Act of 1964 by refusing to hire a Muslim woman who wore a headscarf as part of her religious obligations because it did not conform to the store’s “Look Policy.”  The story began back in 2008 in Tulsa, Oklahoma when 17-year-old Samantha Elauf, like thousands of other teenagers across the country, applied for a job with the popular retail clothing store.  She interviewed with the assistant store manager who found Ms. Elauf to be qualified for the position.  Because Ms. Elauf had been wearing a headscarf that did not comply with the dress code, the assistant store manager sought the advice of the district manager, even disclosing to him that she believed Ms. Elauf wore the headscarf for religious regions.  Nonetheless, he advised her not to hire Ms. Elauf. 

The Equal Employment Opportunity Commission (EEOC) then sued Abercrombie & Fitch for violating Ms. Elauf’s Title VII rights.  The EEOC won on summary judgment at the District Court level and was awarded $20,000.00 in damages.  798 F.Supp.2d 1272 (ND Okla. 2011).  However, that decision was overturned by the Tenth Circuit Court of Appeals on the basis that Ms. Elauf did not inform Abercrombie of her need for an accommodation.  731 F.3d 1106 (2013).  The U.S. Supreme Court took the case on further appeal to decide whether “actual knowledge” by the employer was a prerequisite for a Title VII intentional discrimination claim.

Title VII of the Civil Rights Act of 1964 states:

It shall be an unlawful employment practice for an employer

  • to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
  • to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

42 U.S.C. §2000e-2(a) (emphasis added).  The Act further states, “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”  §2000e(j).

Abercrombie argued that the language in the statute required the employer to have had actual knowledge of an applicant’s religious practice and need for an accommodation.  It claimed that it could not have acted “because of” a religious practice without having actual knowledge of it.  The Court was not swayed by that logic, however, noting that Congress could have included a knowledge requirement if it so desired just like it did in the Americans with Disabilities Act of 1990, which requires reasonable accommodations for “known physical or mental limitations.”  42 U.S.C. §12112(b)(5)(A).  Instead, an employer may be held liable under Title VII as long as the applicant’s need for a religious accommodation was a “motivating factor” in its decision to not hire, and an employer could very well have such motive without actual knowledge.

The Supreme Court’s decision in Elauf marks a significant victory for employees and job applicants.  It sends a message to companies that they cannot plead ignorance and fail to hire an otherwise qualified applicant in order to avoid providing a reasonable accommodation.  If a particular practice such as wearing a headscarf is even presumed to carry with it a religious meaning, that factor simply cannot be considered in the hiring decision.  At the same time, it is important to remember that an employer cannot be forced into an accommodation that would create an undue hardship for its company.  In this case, it clearly would not have been too burdensome for Abercrombie to allow Ms. Elauf to work in its store while wearing a headscarf. 

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