Posted 06-15-2015

Sixteen months ago, we reported that the retailing giant Abercrombie & Fitch had apparently caved in its battles with the EEOC over the wearing of hijabs (religious headscarves) by its employees, after settling two cases it lost a trial. However, we were a bit premature, as Abercrombie pursued a third case all the way to the Supreme Court, losing again. Not only that, but the decision also resolved an important issue on the claimant’s burden of proof in Title VII cases in favor of employees.

Abercrombie agreed in September 2013 to settle two separate cases brought in California by the EEOC on behalf of two teenagers over its refusal to let Muslim female employees wear hijabs at work. The EEOC alleged that Abercrombie’s “Look Policy” could not justify its refusal to accommodate a religious belief, and therefore it violated federal law when it fired one of the teenagers and refused to hire the other. After losing both cases at trial, Abercrombie agreed to settle by paying $71,000 to the two women, changing its policies, and training its supervisors.

At the same time, Abercrombie was on appeal in another case it lost in 2011 in Oklahoma for refusing to hire a teenage girl who came to a job interview wearing a headscarf. A jury had awarded her $20,000 in damages. Many thought Abercrombie would drop this appeal after its settlement, however, it did not. On that appeal, the 10th Circuit Court of Appeals ruled in December 2013 that the applicant had not informed Abercrombie of her religious faith or the need for accommodation. Therefore, since she could not prove knowledge on its part of either her faith or need for accommodation, her claim was deficient.

The applicant, Samantha Elauf, is a practicing Muslim. She wore a headscarf when she was interviewed by the store’s assistant manager. She did not inform the manager that she was Muslim, or that wearing a headscarf was required by her religion. Although rated as qualified for hire, the manager was concerned that wearing the headscarf was a religious practice which would conflict with Abercrombie’s “Look Policy.” She raised the issue with her district manager, who said it was not permitted, period. Based on this, Ms. Elauf was not hired.

The Supreme Court held that, unlike some discrimination statutes (such as the ADA, which requires accommodation only of “known” physical and mental disabilities), proof of knowledge is not required under Title VII (one of the protected characteristics under that statute is religion). Rather, the complainant, such as Ms. Elauf, need only prove that religious belief was a motivating factor. Justice Scalia illustrated this point with the following: “… an employer who acts with the motive (emphasis added) of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” Therefore, the Court reversed the Tenth Circuit’s ruling. EEOC v. Abercombie & Fitch, Inc. United States Supreme Court, No. 14-86

What this means to you:

No employment decisions should ever be made based on any assumptions about the applicant’s personal situation or beliefs. Such decisions should be based only on such factors as qualifications, performance, needs of the business, knowledge, skills, and abilities. Before pursuing any discussions regarding such personal matters, or considering them in any way in making any decisions, managers should consult their managers, and with HR and Legal,before making any decision based on an applicant’s or an employee’s personal situation or beliefs.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.