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Employment Law Alert: US Supreme Court Finds Abercrombie &Amp; Fitch Discriminated Against Muslim Women Because She Wore a Head Scarf

                       The U.S. Supreme Court, in an 8-1 decision (with Justice Clarence Thomas dissenting) found that Abercrombie & Fitch discriminated against a Muslim job applicant when she interviewed in a hijab (head scarf) and was denied employment.  Abercrombie & Fitch argued that Samantha Elauf never advised the interviewer that she wore the hijab for religious reasons or that she required an accommodation or exception to the company’s “look policy”.  The Supreme Court found otherwise.

             The Supreme Court’s ruling cites to Title VII of the Civil Rights Act of 1964, which “prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship.”   While Elauf did not tell her interviewer she was Muslim or required any accommodation, the Court said that Abercrombie “at least suspected” that Elauf wore a headscarf for religious reasons.  “That is enough,” said the Court.

             The Court found that, in 2008, two store managers in the Tulsa, Oklahoma store did not hire Samantha Elauf because the scarf would violate the company’s “look policy.”  The  “look policy” (which has since been revised) was an “East Coast collegiate or preppy style.”  The company argued that its policy prevented sales models from wearing any kind of headwear, unless they requested and received an exception.  Elauf did not request an accommodation or exception to the store’s policy.

             The Equal Employment Opportunity Commission in Tulsa, Oklahoma initially sued on behalf of Elauf.  A jury awarded Elauf $20,000 in compensatory damages.  The company appealed and the 10th U.S. Circuit Court of Appeals reversed that decision, finding that Elauf never directly informed her interviewer she needed a religious accommodation, even though she was wearing the head scarf during her interview.  The U.S. Supreme Court reversed and ruled that Title VII was misinterpreted by the Court of Appeals and that the employer must make an accommodation for Elauf’s religious observance and practice if the employer knew or had reason to know that the headscarf was worn for religious reasons.    The court noted that it was not deciding whether a company would be liable if it had no idea the practice was a religious one.  “Here the employer at least suspected that the practice was a religious one.  Its refusal to hire was motivated by the desire to avoid accommodating that practice and this is enough.” 

Claire Saady is a partner in Saady & Saxe, P.A., and concentrates her practice in the area of employment law. She can be reached at claire@saadyandsaxe.com or 813-909-8855.

 

 

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