If you’ve been in or around an Abercrombie & Fitch in the last several years, you’ve definitely been accosted by obnoxiously loud music, barely dressed employees (also known as Models to A&F), and a scent that is so overwhelming, it can only be described as an assault on your sense of smell. The music is distracting and the scent is nauseating, but the dress code is really the worst thing about the experience.
The so-called “Look Policy” that A&F thrusts on its employees requires them to wear clothing and merchandise similar to what’s sold in the store (strike one, by the way). Apparently, these barely dressed employees create some kind of environment that enhances the consumer’s experience. There are a lot of issues we could raise with this Look Policy (like the fact that there’s evidently nothing in said policy prohibiting topless young men), but we’ll stick to legal issues. This Look Policy is at the center of a lawsuit that will be heard by the Supreme Court because it does prohibit wearing hats or other head coverings.
This lawsuit arose when a Muslim woman claimed she was not hired at an A&F because she wore a headscarf for religious reasons. Samantha Elauf applied for a job as a sales associate at an Abercrombie & Fitch retail store in Oklahoma. She wore a traditional Muslim headscarf. During her job interview, it was explained to her that the sales associate position required employees to comply with the Look Policy, which banned the wearing of hats or other head coverings. The interviewer consulted with her superiors to confirm that headscarves were not in compliance with the Look Policy. Elauf, who was 17 years old at the time, was not offered the job.
Elauf complained to the Equal Employment Opportunity Commission (EEOC), which then sued Abercrombie & Fitch. The EEOC alleged that there were violations of Title VII of the Civil Rights Act of 1964 on the grounds that Abercrombie “refused to hire Ms. Elauf because she wears a hijab” and “failed to accommodate her religious beliefs by making an exception to the Look Policy.” (Title VII prohibits discrimination based on religion, and requires employers to accommodate the sincerely held religious beliefs or practices of employees, unless doing so would impose an undue hardship on the business.)
The United States District Court for the Northern District of Oklahoma sided with the EEOC. The court pointed out that when it comes to a Title VII claim, “the plaintiff initially bears the burden of production with respect to a prima facie case by showing that (1) she had a bona fide religious belief that conflicts with an employment requirement; (2) she informed the employer of this belief; and (3) she was not hired for failing to comply with the employment requirement.
A major issue in the case was whether or not A&F had sufficient notice of Elauf’s religion. Abercrombie argued that because Elauf did not tell the interviewer that she had a religious belief that conflicted with the Look Policy, meaning she required an accommodation, there was not sufficient notice and thus no violation of Title VII. The EEOC countered that Elauf didn’t have to explicitly request an accommodation in order for there to be sufficient notice.
In finding against the Ohio-based retailer, the court pointed out that “Abercrombie had notice [that] she wore a headscarf because of her religious belief[,] and that it refused to hire her because the headscarf conflicted with its Look Policy.”
The United States Court of Appeals for the Tenth Circuit reversed, finding that Elauf must expressly inform Abercrombie of her religious practice of wearing a hijab and expressly seek an accommodation for that practice. Interestingly, the court found support for this view in the EEOC’s own policies and regulations regarding the sources of an employer’s notice. For example, the court pointed out that the agency’s compliance manual emphasizes “that the notice provided by the applicant or employee cannot consist of ‘vague reference[s],’ but instead must be specific.”
What’s more, the court noted that the EEOC has specifically cautioned employers to “avoid assumptions or stereotypes about what constitutes a religious belief or practice or what type of accommodation is appropriate” to avoid stereotyping based on religious dress and/or grooming practices.
Worth noting is that this is not Abercrombie’s first legal battle related to the Look Policy. In fact, this is not even the first legal battle related to the Look Policy that deals with headscarves. Not that long ago, the EEOC sued Abercrombie on behalf of two Muslim women who wore headscarves. A&F agreed to pay them $71,000 and to revise its Look Policy to allow women to wear headscarves for religious reasons. We can only hope that the retailer has actually revised its policy.
So, up next for A&F – which seems to be plagued with problems as of late- is a Supreme Court case where it will be decided whether or not an employee has to explicitly notify a potential employer about a religious practice requiring accommodation.
JENNIFER WILLIAMS is a recent law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. She is currently awaiting admission to the NY State Bar. For more from Jennifer, follow her on Twitter.