United States: Religious Discrimination Suit Over Muslim Job Applicant's Hijab; U.S. Supreme Court Rules Against Abercrombie & Fitch

In a ruling handed down yesterday, the U.S. Supreme Court sided with the Equal Employment Opportunity Commission (EEOC) in a religious discrimination case against the popular clothing retailer, Abercrombie & Fitch Stores, Inc. (Abercrombie). The Supreme Court's ruling overturns a 2013 Tenth Circuit summary judgment decision in Abercrombie's favor. The Supreme Court found that the Tenth Circuit applied a faulty standard in determining that Abercrombie had not discriminated against an unsuccessful Muslim job applicant whose religious beliefs required her to wear a headscarf, known as a hijab.

Case Background:

Abercrombie, in an effort to project a "style" for its stores, had a "Look Policy" governing its employees' dress. That "Look Policy" prohibited "caps" (a term not specifically defined in the Policy) as too informal for the image the company sought to project.

Samantha Elauf, a practicing Muslim, wore a headscarf on account of her religious beliefs. After applying for a position at an Abercrombie store, Elauf interviewed with the store's Assistant Manager, who determined she was qualified for the position but was concerned that Elauf's headscarf would violate the company's "Look Policy." There was no discussion during the interview about Elauf's religious beliefs or the need for a religious accommodation to allow her to wear the headscarf.

The Assistant Manager told Abercrombie's District Manager she believed Elauf wore the headscarf because of her Muslim faith. The District Manager determined that the headscarf conflicted with the company's "Look Policy" and directed that Elauf not be hired.

The EEOC sued Abercrombie on Elauf's behalf, claiming that Abercrombie's refusal to hire Elauf to avoid accommodating her religious practice of wearing the headscarf was an intentional violation of Title VII. The trial court initially granted summary judgment in the EEOC's favor and awarded damages of $20,000 against Abercrombie. Abercrombie appealed the case to the Tenth Circuit, which reversed and entered summary judgment in the company's favor. The Tenth Circuit held that the EEOC could not prevail on its religious discrimination claim because there was no evidence that Abercrombie had "actual knowledge" of Elauf's need for an accommodation.

The Supreme Court rejected the rule espoused by the Tenth Circuit, holding that the EEOC could prove its claim if it could show that Elauf's religious practice of wearing the headscarf was a "motivating factor" in Abercrombie's decision not to hire her. Contrary to the rule stated by the Tenth Circuit – and the arguments pressed by Abercrombie—it was not necessary for Abercrombie to have "actual knowledge" of Elauf's need for the accommodation. Rather, the Supreme Court held that an employer "may violate Title VII even if [it] has no more than an unsubstantiated suspicion that accommodation would be needed." In other words, in proving a discrimination claim based on a failure to accommodate a religious practice, it is not fatal that the job applicant failed to explicitly request an accommodation or that the employer lacked certainty about the existence of a religious practice.

The Supreme Court also brushed aside Abercrombie's argument that its "Look Policy" could not constitute "intentional discrimination" under Title VII because that neutral "Look Policy" treated religious practices and secular practices the same. Rather, because Title VII explicitly gives religious practices "favored treatment," employers are affirmatively obligated to accommodate those practices in making hiring and other employment decisions.

What's Next: 

The case will now go back to the Tenth Circuit for further consideration consistent with the Supreme Court's decision.

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