Posted 03-04-2014

Late last year, in a case that made national news, the retailing giant Abercrombie & Fitch finally seemed to throw in the towel in its battles with the EEOC over the wearing of hijabs (religious headscarves) by its employees. Abercrombie agreed to a settlement of two separate cases brought in California by the EEOC over its refusal to let Muslim employees wear hijabs at work. Abercrombie had defiantly taken the position for years that the wearing of this particular religious garb violated its “Look Policy” and damaged the “Abercrombie brand.” It will be interesting to see if this settlement indicates a change in its position in a third case decided against it in the District Court in Oklahoma in 2011, but in its favor on its appeal to the10th Circuit in December 2013. That case also involved a Muslim applicant who was denied a job because of her hijab.

Under Title VII of the Civil Rights Act of 1964, which was passed fifty years ago, employers are prohibited from discriminating against an employee or applicant for employment because of their religious beliefs. And, going a bit further, the law also requires an employer to “reasonably accommodate” such beliefs, so long as the subject accommodation did not cause the employer an “undue hardship.”

On September 23, 2013, the EEOC announced that Abercrombie had agreed to settle the two California cases and to pay the two teenagers, upon whose behalf the EEOC brought the claims, $71,000, to change its policies, and to train its supervisors about how to handle such requests. Three weeks earlier, in the first case, District Court Judge Yvonne Gonzalez had found Abercrombie liable for religious discrimination for firing a Muslim teenager who worked in a stockroom for refusing to take off her hijab in order to be in compliance with Abercrombie’s “no cap” policy, part of its “Look Policy.”

Five months earlier, in another case brought by the EEOC on behalf of Halla Banafa, the district court judge ruled on a motion for summary judgment filed by the EEOC that Abercrombie could not claim “undue hardship” in denying the 18-year-old Muslim’s application for a sales job because of her wear of a hijab. The court stated in its opinion that there was a complete “dearth of proof” linking store performance or the Abercrombie brand image to maintenance of its “Look Policy”. The ruling gutted Abercrombie’s case for trial, because that was its only defense to the religious discrimination claim. Thereafter, a jury found religious discrimination against Abercrombie. The settlement dropped its appeal of this case.

The EEOC has requested an en banc review of the 10th Circuit panel’s decision in the Oklahoma case. It’s somewhat surprising that Abercrombie continues to press this issue, given the above settlement. But, if they do, this issue may be headed to the U.S. Supreme Court soon

What this means to you:

It is quite clear that the EEOC will look very closely at any dress or appearance policy that is relied on to deny employment because of how they dress if it is related to religious beliefs. Everyone in management needs to be aware of this potential issue, and consult with HR and Legal as necessary before making any decision based on dress or appearance of an employee or applicant that might be related to religious 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.