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February 25, 2015Download PDF

Categories: Appellate Law

The U.S. Supreme Court Scrutinizes Abercrombie & Fitch's "Look Policy"

On February 25, 2015, the U.S. Supreme Court heard argument in an employment discrimination case involving a young Muslim woman from Tulsa, Oklahoma, who alleges she was denied a job because she wears a headscarf in conformance with her religious views. In 2008, Plaintiff Samantha Elauf interviewed with Abercrombie & Fitch for a position as a “model”, which is the company’s term for a sales associate.

Abercrombie’s hiring manager initially gave Elauf a score that indicated she recommended her hiring.  Subsequently, the hiring manager discussed Elauf’s candidacy with the company’s district manager, and after that discussion, the hiring manager gave Elauf a low score in the “appearance and sense of style” category.  While the Abercrombie hiring manager stated she did not ask about Elauf’s religion during the interview because of EEOC guidelines, she assumed the plaintiff wore the headscarf for religious reasons. Abercrombie claims it denied Elauf the job on the grounds that wearing the scarf violated its “Look Policy.”  Abercrombie’s “Look Policy” mandates that employees are prohibited from wearing “hats” while on the clock. Usually a prospective employee would not be tipped off as to the reasons she was not hired.  However, one of Elauf’s friends was an employee of the store and relayed the company’s reasoning behind its decision. 

Elauf filed a lawsuit and a jury found in her favor, awarding her $20,000. But the Tenth Circuit reversed and concluded that Abercrombie & Fitch could not be held liable because Elauf never asked the company to relax its policy against headscarves.  Ms. Elauf’s case raises an issue under Title VII of the Civil Rights Act, which makes it illegal to “fail or refuse to hire or to discharge any individual ... because of such individual's race, color, religion, sex, or national origin.”  Employers must “reasonably accommodate” an employee’s religious beliefs, as long as it does not provide an undue hardship to the business.  The lawsuit hinges on whether employees must explicitly inform prospective employees that they require a religious exemption.

While the Court’s decision is expected by June, the general consensus after arguments is that the justices seemed in favor of plaintiff’s position. In fact, several justices suggested that during interviews, employers could seize the initiative and inform prospective employees that the company had a no-headscarf policy – akin to employers having no-facial hair policies – and allow the prospective employees to make their own determination as to whether they would/could abide by those policies.

Interestingly, Abercrombie is no stranger to litigation involving headscarves. In 2008, a woman named Halla Banafa claimed that a manager at Abercrombie's Milpitas, Calif., location didn't hire her because of her headscarf.  And Umme-Hani Khan, who worked at one of the company's Hollister stores in San Francisco, was fired in 2010 after a district manager visiting her store ordered her to remove her hijab.  Abercrombie settled both of those lawsuits in 2013 and have amended its Look Policy since Elauf instituted her lawsuit to permit headscarves.

The Court’s eventual decision in this case could force employers and the public at large to rethink the balance between religious rights and employer responsibility.