Neutral Policy Can Violate Title VII Based On New United States Supreme Court Case.

Ewing, Sarah_160x222If you have ever been in an Abercrombie & Fitch store, you probably noticed all its employees are dressed in its clothes and look a certain way. A “look policy” governs their attire and bans “caps” as too informal. In E.E.O.C. v. Abercrombie & Fitch Stores, Inc., the United States Supreme Court decided Abercrombie’s application of its neutral “look policy” in its refusal to hire Samantha Elauf, a practicing Muslim, was religious discrimination under Title VII.

Elauf applied for a sales associate position wearing a headscarf. The manager gave Elauf marks qualifying her for hiring, but the manager, who never asked why Elauf wore the head scarf, was concerned about the headscarf violating the “look policy.” The manager raised the issue internally and the district manager ultimately decided the headscarf violated the “look policy,” as would all other headwear, religious or otherwise.

The EEOC sued Abercrombie, claiming its actions violated Title VII religious discrimination; Abercrombie intentionally discriminated against Elauf because of her religion. Abercrombie argued intentional discrimination requires the employer have knowledge of the applicant’s need for an accommodation. However, the court found in an intentional discrimination case an employer’s knowledge is not required; the law prohibits certain motives, regardless of an employer’s knowledge. To help clarify, the court gave an example: “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 . . . ” Wow, thanks for the clarification!

So, what should have Abercrombie done differently? First, the hiring manager had a suspicion Elauf wore her headscarf because of her religion. The manager should have engaged in an interactive process by asking Elauf about the purpose of the headscarf (i.e. religious vs. fashion) and whether she would be able to remove it when working. Once Elauf confirmed the headscarf was for a religious purpose and she would need to wear it while working, then Abercrombie should have evaluated whether it could reasonably accommodate Elauf’s religious practice (i.e. wearing a headscarf). The manager correctly determined she was not fit to make the decision and elevated the question to the district manager. However, the district manager determined Elauf could not wear the headscarf, treating it like any other headpiece. Instead, the district manager should have determined whether allowing Elauf (not all employees) to wear the headscarf was an undue hardship on Abercrombie’s operation. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. Lastly, Abercrombie should make sure it is educating and training its hiring and managerial staff about Title VII compliance. If you have questions about this case or would like in-house training about Title VII compliance and other employment matters, please contact me at sewing@sbhlegal.com or 503-412-3116.