Abercrombie-Fitch gets rare win in religious headscarf case

Just one week after retailer Abercrombie & Fitch agreed to settle two religious discrimination lawsuits filed by the Equal Employment Opportunity Commission (EEOC), the U.S. 10th Circuit Court of Appeals (whose decisions apply to all Wyoming employers) handed the company a rare victory. A divided 10th Circuit overturned a lower court's award of summary judgment (pretrial dismissal) to the EEOC, ruling that because a teenage job applicant never informed Abercrombie that she wore a headscarf called a hijab for religious reasons or requested an exception to the company's dress code, the retailer was not obligated to engage in an interactive discussion about reasonably accommodating her headscarf.

Applicant wears headscarf to interview

In mid-2008, 17-year-old Samantha Elauf applied for a sales position (called a "model" ) at an Abercrombie Kids store in Oklahoma. Elauf has worn a hijab since she was 13 for religious reasons. Before her interview at Abercrombie, she asked a friend who worked at the store whether wearing a hijab to work was allowed. The friend asked an assistant manager, who told her that he had previously worked with someone who wore a white yarmulke and that he did not see a problem with Elauf wearing a headscarf, especially if it wasn't black. Black clothing and "caps" were not allowed under Abercrombie's "look policy." Elauf wore a black hijab to her job interview.

Assistant manager Heather Cooke interviewed Elauf for the model position. Cooke was already familiar with Elauf and knew she wore a hijab because she had seen her talking with her friend in the store and working at other stores in the mall. Although religion was not discussed during the interview, Cooke assumed Elauf is Muslim and that she wears a headscarf because of her religion. During the interview, Cooke described some of the dress requirements expected of Abercrombie employees, but neither she nor Elauf specifically addressed wearing a headscarf at work.

After the interview, Cooke believed Elauf was a good candidate for the job but was unsure whether wearing a headscarf would be a problem because of Abercrombie's strict look policy. Cooke consulted with her district manager, who told her to lower Elauf's interview score so she would not be hired because she wears a headscarf, which was inconsistent with the retailer's look policy.

EEOC: Abercrombie failed to accommodate

In 2009, the EEOC filed a lawsuit in Oklahoma federal court alleging that Abercrombie violated Title VII of the Civil Rights Act of 1964 by refusing to hire Elauf because she wears a headscarf and by failing to accommodate her religious beliefs by not making an exception to its look policy. In religious accommodation cases, an applicant must establish a prima facie (minimally sufficient) case by showing that she (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of the belief, and (3) was fired or not hired for failing to comply with the conflicting employment requirement. If the applicant establishes a prima facie case, the employer may (1) conclusively rebut one or more elements of the case; (2) show it offered a reasonable accommodation; or (3) show it was unable to reasonably accommodate the applicant's religious practice without undue hardship.

The district court granted summary judgment in favor of the EEOC, reasoning that Abercrombie had enough information to make it aware that there was a conflict between Elauf's religious belief and its look policy and that her religious practice would require an accommodation. The court emphasized that over the past decade or so, Abercrombie made numerous exceptions to its look policy, including eight or nine headscarf exceptions. The case went to trial on the issue of damages, and a jury awarded $20,000 in compensatory damages. Abercrombie appealed to the 10th Circuit.

Did Elauf inform Abercrombie of a problem with its policy?

Before the 10th Circuit, Abercrombie argued, among other things, that the EEOC failed to establish a prima facie case because Elauf never informed the company that her practice of wearing a headscarf was due to her religious beliefs or that she would need an accommodation based on the conflict between her religious practice and the company's look policy. A divided 10th Circuit agreed, ruling that the EEOC failed to establish the second element of a prima facie case. The court noted that Title VII's protections apply only when an applicant must choose between her religious convictions and her job.

The 10th Circuit held that Abercrombie was entitled to have the case dismissed because Elauf never informed the company of the conflict between her religious practice and its dress code. The majority opinion stated that an employer must actively engage in a dialogue concerning applicants' religious practices and possible accommodations only after it is put on notice of the need for an accommodation. The appeals court reversed the lower court's award of summary judgment to the EEOC, vacated the jury's damages award, and gave instructions to enter judgment in favor of Abercrombie.

Conflicting decisions set up possible appeal to Supreme Court

The dissenting judge strongly disagreed with the other two judges on the panel, reasoning that Abercrombie should not be permitted to avoid discussing reasonable accommodations for Elauf's religious practice when it knew she wears a headscarf, assumed she is Muslim and wears the headscarf for religious reasons, and knew its look policy prohibited models from donning headwear. The dissenting judge noted that Elauf could not inform Abercrombie of a conflict between her religious practice and its dress code because she did not know the details of the look policy or that headwear, such as headscarves, was prohibited. The dissenting judge would have sent the entire case to a jury to decide whether Abercrombie was liable for religious discrimination.

The dissenting judge pointed out that other appeals courts around the country have held that an applicant can establish a religious failure-to- accommodate case if she can show that the employer knew about a conflict between her religious beliefs and a requirement of the job, regardless of how the employer acquired knowledge of the conflict. Those courts concluded that an employer needs to have only enough information about an employee's religious practices to permit it to see a conflict between the employee's religious practices and its job requirements.

Unlike the 10th Circuit, other appeals courts do not require applicants to inform the employer of the conflict. The split among the appeals courts raises the possibility of an appeal to the U.S. Supreme Court to decide whether an applicant must inform the employer of the conflict between her religious practice and a job requirement before the employer's duty to discuss reasonable accommodations kicks in. EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-5110 (10th Cir., October 1, 2013).

Other religious discrimination cases recently settled

On September 23, just eight days before the 10th Circuit published its decision, the EEOC announced that Abercrombie agreed to settle two religious discrimination lawsuits filed on behalf of two California Muslim teenagers who suffered adverse employment actions because they wear hijabs. As part of the consolidated settlement, Abercrombie agreed to pay $71,000 to the teenagers and change its practices. Specifically, the company agreed to inform applicants during interviews that accommodations to its look policy may be available, train managers on headscarf situations, and create an appeals process for denials of religious accommodation requests.

Lessons for facing religious accommodation issues

The 10th Circuit's ruling is favorable for Wyoming employers. The rash of religious discrimination cases filed against Abercrombie, however, highlights the problems of making hiring and firing decisions based on a policy that may be at odds with applicants' and employees' religious beliefs. Exercise caution when enforcing dress codes and other employment policies when you have knowledge that applicants' or employees' religious beliefs or practices may cause a policy violation. Read More...