On June 1, 2015, by an 8-1 vote, the United States Supreme Court held that Abercrombie & Fitch’s religiously neutral dress policy, when applied, failed to accommodate religious practices.
The case, EEOC v. Abercrombie & Fitch, arose out of the 2008 job application of Samantha Elauf, a 17-year-old practicing Muslim, applying for the job as a sales associate with an Abercrombie & Fitch store in Oklahoma.
During her interview with the store’s assistant manager, Elauf wore a black headscarf, or “hijab.” Using the store’s ordinary system for evaluating candidates, Elauf was given a rating that qualified her for a position. The manager was, however, concerned that Elauf’s headscarf would conflict with Abercrombie’s “Look Policy,” a store policy that prohibits caps. The store manager, believing that the headscarf may be worn for religious reasons, raised her question with the Abercrombie & Fitch district manager. The district manager explained that such a headscarf would violate the Look Policy, as would all other headwear, religious or not, and directed the store manager not to hire Elauf.
Elauf filed a charge of religious discrimination, under Title VII of the Civil Rights Act, with the Equal Employment Opportunity Commission (“EEOC”). As is rarely done, the EEOC, finding probable cause, filed a lawsuit in federal court against Abercrombie on behalf of Elauf. At trial, the jury awarded Elauf $20,000 in damages. On appeal, however, the Tenth Circuit Court of Appeals reversed the Trial Court’s decision, explaining that the Look Policy was religiously neutral and, at the time of its decision not to hire Elauf, the employer lacked actual knowledge of Elauf’s religion.
The United States Supreme Court, hearing the case on an appeal by the EEOC, overturned the Tenth Circuit Court’s decision. To highlight the key practical points, the Court gave the following instructions:
- If, based on suspicions of a need for religious accommodation, an employer denies an applicant employment, religious discrimination may be found, even when an employer does not have actual knowledge of the religion.
- An employer’s otherwise neutral policy must have some flexibility for the need to accommodate. The Court explained that Title VII does not require “mere neutrality” toward religion and actually requires employers to give religion “favored treatment”. (Even within the Court itself, there was some tension on this point. Justice Thomas, the only dissenter, agreed with Abercrombie on the point that its religiously neutral policy was applied similarly to all employees, religious or otherwise.)
Practical Points for Employers:
- Train all managers and supervisors. While hindsight really is “20/20”, it is quite possible that this entire case could have been avoided had Abercrombie’s assistant manager contacted the store’s legal counsel. Even if the store manager was unaware of the availability of legal counsel, then the human resource department should have been contacted.
- Talk to employees. When dress policies may impact religious observances, it is best to discuss dress code violations with employees to determine whether an accommodation should be made.
- Public employers may have different concerns: Because Pennsylvania’s federal courts have, in some circumstances, recognized a compelling government need for religious neutrality, public employers should contact their Solicitor’s office for advice on how EEOC v. Abercrombie applies to them.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
