Abercrombie's Discrimination Case Went to the Supreme Court

“A&F has a longstanding commitment to diversity and inclusion, and consistent with the law, has granted numerous religious accommodations when requested, including hijabs,” noted Abercrombie & Fitch spokesman, Michael Scheiner.  We will know by late spring if the Supreme Court sides with Abercrombie & Fitch (“A&F”) in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14-86.

On February 25, A&F defended its decision not to hire Samantha Elauf, a Muslim woman, during an hour-long oral argument before the high court.  Elauf applied to work at a Tulsa, Oklahoma abercrombie kids store as a sales associate – or a “model,” as Abercrombie calls the position internally.  Elauf was rejected because the hijab she wore to the interview did not comply with the company’s strict dress code.  So, is this a case of fashion or religious discrimination?


For her interview with an assistant store manager, Elauf wore jeans, a T-shirt, and a black headscarf, according to court documents.  The meeting went well and Elauf scored high, but she did not get the job.  A friend who worked at the store asked about the store’s decision, and the assistant manager indicated that Elauf had not been hired because of her headscarf. At the time of the interview, Abercrombie’s “Look Policy” required employees to dress in a way consistent with the clothing it sells, and it prohibited wearing headscarves or anything in black. The company has since relaxed its policy regarding headscarves, yet the no-black rule remains in place.

Abercrombie’s Look Policy – the brainchild of former CEO Mike Jeffries – aims to cultivate an iconic collegiate “preppy” style. The Ohio-based company deems caps too informal for the image they project, and it also bans facial hair, tresses with streaks and contrasting colors, unnatural makeup, obvious tattoos and long fingernails.

The mall-based retailer founded in 1892 inserted itself into the marketplace to sell to beautiful, young and privileged people who desire to emulate timeless East Coast traditions. The Ivy League look may be familiar to the nine justices on the Supreme Court regardless of their style proclivities, since most hail from Harvard or Yale.

In court briefs, lawyers for Abercromie say stores must preserve their business “through the vicissitudes of teen and young adult fashion.”  A&F lawyer Shay Dvoretzky opined, “Messages that deviate from a brand’s core identity weaken the brand and reduce its value.” The employer has a dress code that probably resulted from numerous focus group sessions, but is Samantha Elauf’s headscarf going to fiscally damage A&F’s business or cause them undue hardship [to provide an accommodation]?

Some argue Abercrombie’s standards of “youthful all-American” and “classic” (word qualifiers used in their marketing materials) are inadvertently discriminatory. During oral argument on Wednesday, Justice Samuel A. Alito, Jr. remarked that the chosen look was that of “the mythical preppy.”

SCOTUS will take a hard look at A&F’s Look Policy, and the sine qua non is whether A&F, and other retailers like it, must automatically offer religious accommodation for applicants, or whether the prospective employee must request such accommodation.  “They don’t have to accommodate a ball cap,” Justice Ruth Bader Ginsburg said. “They do have to accommodate a yarmulke.”

In 2009, the federal Equal Employment Opportunity Commission (“EEOC”) sued Abercrombie on Elauf’s behalf for an alleged violation of Title VII of the Civil Rights Acts of 1964, which prohibits employers from refusing to hire someone based on religious practices unless it can show it would be an “undue hardship” to allow the practice. The store, the lawsuit contended, should have made an exception to its Look Policy to accommodate Elauf’s religious beliefs.   A federal judge agreed, and a jury at the trial court level awarded Elauf $20,000 in damages.

In 2013, the Tenth Circuit Court of Appeals in Denver overturned the lower court’s verdict and found Abercrombie could not be held liable because “Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf, or ‘hijab,’ for religious reasons,” Judge Jerome A. Holmes wrote for the court.  The appeals court contended that the store ultimately did not know – and Elauf did not say – whether she was wearing the headscarf for religious reasons.

One wonders why Abercrombie continues to fight Elauf’s claim when it previously paid $40 million to thousands of minority plaintiffs, to settle a case brought by black, Hispanic and Asian-American college students for racial and sexual discrimination. In 2013, Abercrombie likewise agreed to pay $71,000 in settlements after the EEOC filed two religious discrimination lawsuits.

Justice Samuel A. Alito, Jr. observed on Wednesday that employers could effortlessly find out if prospective employees need a religious accommodation by simply asking if they are able to abide by work rules.  He and other justices seemed to place the burden on the employer to explain the company’s wardrobe policy and begin a dialogue with an applicant about whether he or she could comply, rather than simply deciding not to hire.

The store says it has granted religious exemptions that have been requested over the years on a case-by-case basis. In this instance, however, Elauf never asked for such an exemption.

What legal lesson lies beneath a company built upon polo shirts and starched collars? Deputy Solicitor General Ian Gershengorn told the Supreme Court that when an employer has reason to believe that an applicant will need a religious accommodation, an employer should simply describe its dress code and ask if it posed a problem. That would shift the burden to the applicant. If the applicant then raised a religious objection, the employer would be required to offer an accommodation so long as it did not place an undue burden on the business.

Abercrombie lawyer Shay Dvoretzky countered that employers would get into trouble if they asked a job applicant about her religion because that would expose employers to lawsuits. Unsurprisingly, A&F’s justification resonated with conservative jurists, who threw Abercrombie a bone. Chief Justice John Roberts expressed concern that a dialogue over religious practices could lead to increased stereotyping. Justice Antonin Scalia defended the appeals court and stated if a job applicant is going to sue over a religious accommodation claim, perhaps she should raise it during the job interview.

Justice Elena Kagan, criticizing the appeals court decision, compared the Elauf case to an employer that did not want to employ Jews and then checking names that looked Jewish to screen applicants. “That’s gotta be against the law, right?” she said, skeptically.

Sixteen religious-advocacy groups, in a move that underscores the importance of the issues in this religious-bias case, have filed amicus curiae (friend-of-the-court) briefs claiming Abercrombie’s actions were religiously discriminatory and that most workplace conflicts over religion can be addressed through simple accommodations. Conversely, business advocacy organizations have supported A&F, fearing they could face similar consequences for religious discrimination.

Based upon the totality of the statements uttered within the hallowed halls of the U.S. Supreme Court on Wednesday, the justices have shown little tolerance for the retailer’s rejection of a Muslim job applicant. The court’s four liberal justices are likely to vote in Elauf’s favor, while at least one of the court’s conservatives, Justice Alito, seems set to follow suit.  As a result, simple math calculations show the U.S. EEOC will obtain the five-vote majority necessary for a win.  A decision in the case is expected by late June.

STACY SLOTNICK, Esq. holds a J.D., cum laude, 2008, from Touro Law Center and a B.A., summa cum laude, 2005, from the University of Massachusetts Amherst Commonwealth Honors College.  Stacy performs a broad range of duties as an entertainment lawyer, which include drafting and negotiating contracts; pitching clients for high-caliber media coverage; addressing and litigating trademark, copyright, patent and other IP issues; advising on branding development; and consulting on design protection, licensing and merchandising. For more from Stacy, follow her on Twitter.