US Supreme Court Rules in Favor of Women Denied Employment by Abercrombie and Fitch Based on Her Headscarf

Tuesday, June 2, 2015

The U.S. Supreme Court held in an 8-1 decision written by Justice Antonin Scalia that an employer may not refuse to hire an applicant if the employer was motivated by avoiding the need to accommodate a religious practice. Such behavior violates the prohibition on religious discrimination contained in Title VII of the Civil Rights Act of 1964.  An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge re- quirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.

According to the Supreme Court, "An employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed." The court continued that " accommodate a religious practice is straightforward: An employer may not make an applicant's religious practice confirmed or otherwise, a factor in employment decisions."

The case arose when Samantha Elauf, then a teenager who wore a headscarf or hijab as part of her Muslim faith, applied for a job at Abercrombie & Fitch in her hometown of Tulsa, Okla. She was denied hire for failing to conform to the company's "Look Policy," which Abercrombie claimed banned head coverings. She then filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC), alleging religious discrimination, and the EEOC filed suit against Abercrombie & Fitch alleging that Abercrombie refused to hire Samantha Elauf due to her religion, and that it failed to accommodate her religious beliefs by making an exception to its "Look Policy" prohibiting head coverings.

The district court granted summary judgment to the EEOC after holding that the evidence established that Elauf wore the hijab as part of her Muslim faith, that Abercrombie & Fitch was on notice of the religious nature of her practice, and that it refused to hire her as a result. A jury subsequently awarded Elauf damages for the discrimination.

Abercrombie appealed and a divided panel of the U.S. Court of Appeals for the Tenth Circuit ruled for Abercrombie. The court of appeals held that Abercrombie was not on sufficient notice of Elauf's religious practice because, despite correctly "assuming" that Elauf wore a headscarf because of her religion, Abercrombie did not receive explicit, verbal notice of a conflict between the "Look Policy" and her religious practice from Elauf - despite the evidence that Abercrombie never disclosed the "no head coverings" rule in the "Look Policy" to Elauf.

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