UPDATE (Jun. 1): The Supreme Court has ruled 8-1 against Abercrombie & Fitch for violating workplace discrimination laws by failing to accommodate religious needs when they rejected Samantha Elauf’s job application on the basis that her hijab did not align with the company’s dress policies. “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” wrote Justice Antonin Scalia for the majority.

—————————————————————————————————————————————————————

If you’ve been keeping up with Abercrombie’s terrible PR moves – links here, here and here– you know that it has repeatedly come under fire for being intolerant of anyone who does not fit the ideal Abercrombie image; what they call “classic East Coast collegiate style,” and what I more accurately refer to as “vanilla beach Barbie-Ken-esque style.”

Most notably, in 2013, a 2006 interview with former CEO Mike Jeffries resurfaced, where he made disparaging comments about not wanting “fat” or “not-so-cool kids” wearing Abercrombie’s clothes, bringing a lot of bad press to Abercrombie. Now, Abercrombie & Fitch’s intolerant and discriminatory hiring practices have caught the Supreme Court’s (“SCOTUS”) attention. Today, SCOTUS will weigh in on whether the allegation that Abercrombie & Fitch illegally rejected a Muslim job applicant for wearing hijab has constitutional merit. The Court’s decision is expected in June.

The Current Situation

The Equal Employment Opportunity Commission (“EEOC”) brought suit, on behalf of Samantha Elauf, under Title VII of the 1964 Civil Rights Act (Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., (2014)). Under Title VII, employers cannot refuse employment on the basis of a potential employee’s religious beliefs unless accommodating those beliefs would bring the employer “undue hardship.” Title VII’s religious accommodation protection is especially important when an applicant or employee’s faith is readily identifiable.

A decision in the EEOC’s favor will have significant effects on employers’ hiring practices, placing the burden on employers to make potential employees aware of any policies which may affect them. Abercrombie argues that its store policy, known as its “Look Policy,” forbids sales staff, whom it considers models, from wearing any sort of cap (untrue, given that Abercrombie and its other retail affiliates do sell caps, hats and scarves of many styles and patterns all year round) and that floor staff are expected to represent the store’s “classic East Coast collegiate style.” Abercrombie will argue that forcing it to allow sales associates, whom it calls floor “models,” to wear non-conforming pieces would be an “undue hardship” because it will change the brand’s perception. Boo Hoo. Apparently the perception is that “classic East Coast collegiate style” does not include people who outwardly express their differing faith.

Abercrombie is a Repeat Offender

Elauf’s case isn’t the first time Abercrombie has hidden behind its Look Policy. Cases in point:

In 2009, an Olympia, Washington Hollister store manager forced an employee to remove a silver cross pendant because the necklace did not fit Abercrombie’s Look Policy.

A Hindu Hollister employee reported that her manager demanded she remove a vastra , (sacred string) that a Hindu priest tied around her wrist. The manager threatened to put the employee in the stock room if she did not comply. According to Hindu practice, the string must remain on the wrist until it falls off naturally. She cut off the string as demanded by her manager to keep her job.

, (sacred string) that a Hindu priest tied around her wrist. The manager threatened to put the employee in the stock room if she did not comply. According to Hindu practice, the string must remain on the wrist until it falls off naturally. She cut off the string as demanded by her manager to keep her job. Esraa Mohamed was hired to work at an Abercrombie store in Fairfax, Virginia despite wearing hijab, because the district manager knew she would mostly work in the back of the store. Every time the district manager visited she was sent to the stock room, and was in fact constantly forced to remain there despite the fact that other members of her team were allowed to be on the sales floor.

In 2010, Hani Khan, was fired from a San Mateo, California Abercrombie store because she refused to take her hijab off at work. Khan sued. Abercrombie argued,“its Look Policy goes to the ‘very heart of [its] business model’ and thus any requested accommodation to deviate from the Look Policy threatens the company’s success.” In response, U.S. District Court Judge Yvonne Gonzalez-Rogersopined in the Court’s decision that “Reasonable jurors could determine that by offering Khan one option – to remove her hijab despite her religious beliefs – Abercrombie acted with malice, reckless indifference or in the face of a perceived risk that its actions violated federal law.”

Abercrombie & Fitch has come under fire for its draconian Look Policy. The company’s style guide lays out exactly what kind of attire store employees can wear and how they can wear it. They regulate everything from the length of jeans’ cuffs to fingernail length, 5 o’clock shadows, hair highlights and traces of eyeliner. Failure to meet these very specific guidelines result in violations, where an employee can be reprimanded, sent home and even fired.

The Courts

This case was originally heard in the Northern District of Oklahoma, 2011, where the Court ruled in the EEOC’s favor. Among other things, Abercrombie claimed that it did not in fact have notice that Elauf wore hijab based on religious belief and that even if it had notice, granting Elauf an exception to the Look Policy would be an undue burden. The District Court found that since Elauf wore her hijab to the interview with the assistant store manager, and since the assistant store manager knew she wore the hijab based on her religious belief, and since the assistant store manager then consulted with the District Manager regarding her uncertainty about an accommodation, the employer, Abercrombie, had notice that Elauf wore hijab based on her religious belief. The Court also ruled that Abercrombie did not conduct sufficient investigation and therefore failed to meet its burden of establishing that granting Elauf an exception to the Look Policy would cause undue hardship.

This decision was appealed to the 10th Circuit in 2013, which reversed the District Court’s decision, ruling in favor of Abercrombie. The 10th Circuit found that the hiring agent for Abercrombie did not have notice that Elauf wore her hijab based on her religious beliefs and therefore Abercrombie did not have a duty to accommodate her religion when her hijab conflicted with its store policy regarding employee attire. The assistant store manager saw Elauf wearing hijab but did not know her religion and the assistant store manager just assumed Elauf was Muslim but never asked, and Elauf never explicitly said she was a Muslim. The 10th Circuit places the burden on employees and applicants to ensure that the workplace will be a suitable work environment for them, in light of their required religious practices.

The Supreme Court granted certiorari, meaning they agreed to hear the case, on October 2, 2014.

How SCOTUS Should Rule

In the EEOC’s favor (obviously). Here’s why:

The 10th Circuit improperly decided the issue of Notice. There isn’t really a difference between actual knowledge (Elauf expressly asking for an accommodation based on her religion) and constructive knowledge (Elauf showing up to a job interview wearing religious garb). Abercrombie’s assistant store manager assumed Elauf was Muslim and figured that was the religious reason why she wore her hijab. Despite this, the 10th Circuit held that,

“…It is not enough that an employer is aware of a potential conflict; the applicant must present the employer with explicit details sufficient to give it ‘particularized, actual knowledge’ before an employer need consider accommodating the applicant’s religious practices, even if it is the employer that possesses more knowledge about how its rules may conflict with the religious practices.”

The American-Arab Anti-Discrimination Committee (“ADC”), in their Brief of Amici Curiae, put it best:

“An employer need have ‘only enough information about an employee’s religious needs to permit the employer to understand the existence of a conflict between the employee’s religious practices and the employer’s job requirements.’” See Also #MuslimGirlLife This Is What Alan Rickman Did for Palestine

To establish that Ms. Elauf was in need of an accommodation, it was enough that the interviewer believed Ms. Elauf wore the hijab for religious reasons. Thus, the 10th Circuit set a terrible precedent.

Additionally, as the Tenth Circuit noted, accommodations under the Americans with Disabilities Act (ADA) are often looked to for guidance in religious accommodation cases. But despite acknowledging the analogy that is often drawn between these two situations, the Court failed to extend that same logic when it came to the Notice requirement. In ADA cases, federal courts have determined that there is no requirement that an employer have actual knowledge in order to engage in the interactive process (The ADC cites Barnett v. U.S. Air, Inc., Coley v. Grant County, Jacques v. DiMarzio).

SCOTUS should find that an employer is required to engage in an interactive process when recognizing that an employee or applicant might need a religious accommodation. Abercrombie only has to inquire about whether the applicant or employee wears the hijab (or other religious garb/symbolism) for a religious reason. This inquiry responsibility on employers is necessary so that they do not shirk their obligations under Title VII.

Look, Abercrombie has every right to keep its image through its fascist methods of micro-control. It can push the “classic East Coast collegiate” look all it wants. But there is no reason that it cannot include people of all identities while doing so. I mean, I went to college on the East Coast. I can promise that almost no one fits the Abercrombie model anyway. More importantly, preventing people of differing religious identities from seeking employment is a discriminatory practice, and one that Abercrombie must seriously reconsider.

—

Written by Naji’a Tameez