Cases of Interest: Equal Employment Opportunity Commission v. Abercrombie & Fitch

Case(s): United States District Court, N.D. Oklahoma - Case No. 09-CV-602-GKF-FHM; United States Court of Appeals for the Tenth Circuit - Case No. 11-5110; Supreme Court of the United State - Case No. 14–86

Facts: International clothing store chain Abercrombie and Fitch ("Abercrombie") requires its employees to follow what’s known as a “Look Policy.” This policy is meant to reflect the store’s “preppy” aesthetic and it applied not only to clothes, but also to facial hair and shoes. The “Look Policy” prohibits black clothing and caps. In 2008, Samantha Elauf, then seventeen, applied for a job as a salesperson at an Abercrombie children’s store in Oklahoma. Elauf is a practicing Muslim and has been since she was thirteen.  

When Elauf showed up for her interview with an assistant store manager, she wore a T-shirt, jeans, and a black headscarf, according to court documents. The headscarf is required by her faith. Elauf did not mention her headscarf in the interview and did not mention that she would need an accommodation. Despite the fact that the interview went well, Elauf didn’t get the job. When a friend who worked at the store asked about the store’s decision, it was indicated that Elauf hadn’t been hired because of her headscarf.

In 2009, the Equal Employment Opportunity Commission (EEOC) sued Abercrombie on Elauf’s behalf in federal court.  The EEOC alleged that Abercrombie had violated Title VII of the Civil Rights Act of 1964. Relevant to this lawsuit, Title VII prohibits employers from refusing to hire someone because of her religious practices unless the employer can show that it would be an “undue hardship” to make allowances for the practice. The lawsuit contended that Abercrombie should have made an exception to its “Look Policy” to accommodate Elauf’s religious beliefs.

Abercrombie argued that Elauf had a duty to inform the interviewer that she required an accommodation from the “Look Policy” and that Elauf’s wearing of the headscarf is not based on a sincerely held religious belief.   

United States District Court, N.D. Oklahoma.

District Judge Gregory Frizzell agreed with the EEOC and Elauf was awarded $20,000 in damages. Judge Frizzell found that there was “no genuine dispute that Elauf wears a head scarf because of a bona fide religious belief,” that Abercrombie failed to rebut that it “had notice that Elauf wore a head scarf based on her religious belief,” and that Abercrombie “failed to meet its burden of establishing that granting Elauf an exception to the Look Policy would have caused undue hardship.”

United States Court of Appeals for the Tenth Circuit

Abercrombie appealed the district court’s decision.

In 2013, the United States Court of Appeals for the Tenth Circuit reversed Judge Frizzell’s ruling. 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 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.

Supreme Court of the United States

On June 1, 2015, the Supreme Court ruled 8–1 in favor of Elauf. Justice Scalia, writing for the majority, held that Elauf did not have to explicitly request an accommodation to obtain protection from Title VII. Instead, Elauf only needs to show that her “need for an accommodation was a motivating factor in the employer’s decision.”

Analysis: The Supreme Court reasoned that to prevail in a Title VII of the Civil Rights Act of 1964 claim, “an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.”

There is no requirement that an employer have actual knowledge of a need for accommodation. Instead, Title VII prohibits certain motives. “An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

The Court also rejected Abercrombie’s argument that it could not have intentionally discriminated against Elauf because the store’s “no headwear” policy is neutral, meaning it applies to everyone, regardless of religion. Title VII, the Court explained, “does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual’s’ ‘religious observance and practice.’”

Conclusion: This case gives job applicants a strong new level of civil rights protections when it comes to religious bias and religious accommodations in employment. “A job applicant whose faith dictates a personal practice that may contradict a company’s workplace rules now has a better chance of getting hired, even if the management’s rule is entirely neutral about religion.....If the management has even an inkling about the applicant’s religious views, it may violate federal civil rights law by turning aside that would-be employee while enforcing a job rule, the Court indicated.”