The Supreme Court issued a controversial decision which should prompt Employers to review their hiring practices and criteria.  In the recent EEOC v. Abercrombie & Fitch case, the Supreme Court ruled that Abercrombie & Fitch discriminated against Samantha Elauf (“Elauf”) based on her religious practice of wearing a headscarf.

Elauf, a Muslim, wore her headscarf to her Abercrombie & Fitch job interview.  During the interview, neither Elauf nor Abercrombie & Fitch representatives discussed her religion or her headscarf.  However, after determining Elauf was qualified for the job she applied for, Abercrombie & Fitch decided that Elauf’s headscarf violated its “look policy.”  Abercrombie & Fitch’s “look policy” required its employees to wear the store’s merchandise: essentially serving as “models” for the Abercrombie & Fitch brand’s style.  Abercrombie & Fitch’s representatives determined – without discussing whether an acceptable accommodation was available with Elauf – that the headscarf did not fit the brand’s style.

Elauf filed a complaint of religious discrimination with the Equal Employment Opportunity Commission (“EEOC”).  The EEOC eventually sued Abercrombie & Fitch in federal court, claiming the company violated Title VII’s antidiscrimination provisions.  Abercrombie & Fitch argued that it decided not to hire Elauf based on its neutral “look policy,” not because she was Muslim.  It also argued that Elauf never asked for an accommodation, nor did she ever disclose that she was a Muslim during the interview.

The trial court found in favor of Elauf and the EEOC.  However, the Tenth Circuit Court of Appeals reversed and found in favor of Abercrombie & Fitch.

The Supreme Court ruled that Abercrombie & Fitch’s representatives’ actions demonstrated Elauf’s need for an accommodation in wearing a religious headscarf was a “motivating factor” in the decision not to hire her.  Abercrombie & Fitch was not shielded from liability based on the argument that it was following a religion-neutral “look policy.”  In sum, by declining to hire Elauf rather than engaging in a discussion concerning a potential accommodation, Abercrombie & Fitch violated Title VII’s antidiscrimination provisions.

Importantly, the Supreme Court’s decision does not mean every job applicant that wears religious clothing must be hired.  Nor does the decision mean that employers should inquire into an applicant’s religion.  The decision does, however, require Employers to review their hiring practices and criteria to ensure they do not run afoul of antidiscrimination laws.  Feel free to contact the attorneys at Davis Grimm Payne & Marra is you’d like assistance reviewing your hiring practices and criteria.

Erik M. Laiho is a Washington licensed attorney representing Management in the areas of labor and employment law.  For more information contact Erik at, or (206) 447-0182.

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