In a case brought by the EEOC, the United States District Court for the Northern District of California recently ruled that clothing retailer Abercrombie & Fitch had discriminated against a Muslim employee in violation of Title VII of the Civil Rights Act of 1964 when it failed to accommodate her religious headscarf, or hijab. The court rejected Abercrombie's defense that accommodating the employee would have imposed an undue hardship under its "Look Policy."
The case involved a former Abercrombie employee named Umme-Hani
Khan. Khan is Muslim and believes that her religion requires her to
wear a headscarf when in public or in the presence of men who are
not immediate family members. She worked at one of
Abercrombie's Hollister stores in California from October 2009
until her termination in February 2010. Throughout that time, Khan
wore a headscarf while at work, with the permission of her
supervisors.
The headscarf violated Abercrombie's Look Policy, which
provides guidelines for employees' appearance and clothing
while at work. Among other requirements, the Look Policy prohibited
all store employees from wearing headwear. Although Khan's
supervisors permitted her to wear a headscarf so long as it matched
company colors, a district manager visiting her store noticed that
she was not in compliance with the Look Policy. The district
manager contacted a human resources manager, who told Khan that her
headscarf violated the Look Policy and asked her to take it off.
Khan replied that her religious beliefs precluded her from taking
the headscarf off. Abercrombie suspended Khan, then terminated her
employment for violating the Look Policy. Abercrombie later offered
to reinstate Khan with permission to wear her headscarf at work,
but she declined the offer.
The EEOC sued Abercrombie under Title VII for failing to
accommodate Khan's religious beliefs, and Khan intervened.
Abercrombie did not dispute that the plaintiffs could establish a
prima facie case of failure to accommodate, but it asserted several
affirmative defenses, including that it could not reasonably
accommodate Khan without undue hardship. In support of its undue
hardship defense, Abercrombie offered numerous employees'
testimony that compliance with the Look Policy is key to
Abercrombie's success and that deviations from the Look Policy
negatively affect Abercrombie's brand. The court dismissed such
testimony as "unsubstantiated opinion" and noted that
Khan had worn the headscarf at work for four months without any
complaints, disruption, or decline in sales. The court also found
that Abercrombie's claim of hardship was undercut by the
company's having granted many other exceptions to the Look
Policy, including more than 16 for headscarves since 2006. The
court granted the plaintiffs' motion for summary judgment as to
liability on their claims that Abercrombie had failed to
accommodate Khan's religious beliefs. A trial on damages and
injunctive relief is scheduled for later this month.
This case carries several lessons for employers. First, employers
should engage in good faith in an interactive process with
employees who request accommodations, even if they believe the
process is not likely to succeed. (In Khan's case, the court
noted that Abercrombie had not initiated any good faith efforts to
accommodate her, and that the HR manager had decided to terminate
Khan even before they had discussed the headscarf issue.) Second,
employers should make sure that their policies are both reasonable
and consistently applied. (In Khan's case, the court emphasized
Abercrombie's willingness to accommodate other employees'
deviations from the Look Policy and its post-termination offer to
reinstate Khan with permission to wear a headscarf, both of which
seemed to contradict its undue hardship defense and to make that
defense appear unreasonable.)
Originally published on the Employer's Law Blog
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