Abercrombie & Fitch is no stranger to publicized legal problems. But in this fashion law case, an Abercrombie employee openly admitted to changing her hiring decision due to an applicant’s hijab.
Early this month, in an 8-1 decision, the U.S. Supreme Court rejected a holding that to prove discrimination, a job applicant must advise an employer of a religious practice necessitating accommodation. Instead, job seekers need only demonstrate that a prospective employer’s desire to avoid providing an accommodation was a motivating factor in its decision not to hire.
The case* was filed in 2008 on behalf of an Abercrombie sales floor applicant who wore a hijab to an interview at one of the retailer’s locations in Oklahoma. The applicant, Samantha Elauf, is a practicing Muslim who did not mention her religion or request an accommodation to Abercrombie’s dress code.
Although the interviewer gave Elauf a rating that qualified her for hire, the interviewer told an A&F district manager that she believed Elauf wore the hijab because of her faith. The district manager concluded that the headscarf violated Abercrombie’s “Look Policy,” so Elauf was not be hired.
The EEOC sued Abercrombie on Elauf’s behalf and initially obtained a $20,000 summary judgment from the district court. The Tenth Circuit reversed, holding that Elauf was required to advise Abercrombie that her religious practice conflicted with a job requirement and that she would need an accommodation.
Finally, the Supreme Court reversed. In reaching this conclusion, the Court explained that, while some anti-discrimination statutes impose a knowledge requirement, Title VII of the Civil Rights Act of 1964 (which prohibits religious discrimination in hiring) contains no such limitation.
An employer who acts with the motive of avoiding accommodation may violate Title VII.
Ultimately, the Supreme Court’s decision does not impose a new duty on employers. The ruling simply clarifies the standard for proving discrimination in a religious accommodation case in which no request for accommodation was actually made.
Employers already were required to reasonably accommodate the religious practices of their employees or prospective employees, unless such an accommodation would cause an “undue hardship.” Abercrombie’s August 2013 Look Policy was updated to reflect such an understanding (as displayed by buzz feed.com).
In other Abercrombie news, the retailer and Justice Department recently settled a discrimination based claim. The claim was filed with the Office of Special Counsel for Immigration-Related Unfair Employment Practices.
If you are a fashion entrepreneur, take note of Immigrations and Nationality Act (INA) or it can cost you
This case came about because Abercrombie required a non-U.S. citizen to present a green card but did not ask for similar documentation from a similarly situated U.S. citizen.
The problem with Abercrombie’s request is that INA’s anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship status or national origin.
Abercrombie will pay a civil penalty to the U.S. and $3,661.14 in back pay to the complainant. It will also create a back-pay fund of $153,932, available as compensation to other similarly harmed individuals.
*Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.