Categories: Retail

By Amy Messigian

After settling two religious discrimination suits with the Equal Employment Opportunity Commission (“EEOC”) last month, clothing retailer Abercrombie & Fitch scored a big win this week in another religious discrimination case before the Tenth Circuit Court of Appeal, which found that the EEOC did not prove its failure to accommodate claim for a Muslim job applicant denied hire by an Abercrombie store in Oklahoma because she wore a hijab (a religious headscarf), reversing a lower court.

Ordering judgment for Abercrombie, the Tenth Circuit found that the EEOC failed to show that the applicant neither informed Abercrombie of a conflict between her “inflexible religious belief” and a work rule nor requested an accommodation from compliance with the rule.  While the EEOC argued that Abercrombie was on constructive notice of a conflict between the applicant’s religious beliefs and the company’s “Look Policy,” which prohibits sales associates from wearing “caps,” the Tenth Circuit held that Title VII requires a showing that the applicant was the “source of the employer's notice of a need for a religious accommodation.”  Because religion is “uniquely personal,” the court reasoned that only an employee or applicant will know whether the religious belief or practice is inflexible or whether he or she is observing the belief “for cultural or other reasons that are not grounded in that religion.”

This ruling comes on the heels of Abercrombie’s settlement last month of two separate religious discrimination cases brought by the EEOC on behalf of two Muslim teens for wearing hijabs.

In one matter, a district court found Abercrombie liable for religious discrimination when it fired a Muslim teenager from her "impact associate" (stockroom employee) position because she refused to remove her hijab, which Abercrombie claimed violated its “Look Policy.” Abercrombie asserted that it would harm the Abercrombie brand to allow a variance from the policy.  Observing that the job applicant had been interviewed and hired while wearing the hijab and had worked without incident for four months, the court dismissed Abercrombie's argument.

In the other matter, a separate district court rejected Abercrombie's defense of undue hardship on summary judgment.  There, it was alleged that a Muslim job applicant informed Abercrombie during her interview that she wore a headscarf for religious reasons.  She was later denied the job on the basis that Abercrombie claimed to be unable to accommodate her religious dress.  The retailer asserted that it could not accommodate the request to wear a hijab because of the impact of such an accommodation on store performance.

As part of the settlement between Abercrombie and the EEOC, Abercrombie has agreed to create an appeals process for denials of religious accommodation requests, inform applicants during interviews that accommodations may be available, and provide manager training on religious dress.

Given the aggressive stance that the EEOC has taken of late in prosecuting religious dress accommodations cases, it would seem likely that the EEOC will appeal the Tenth Circuit decision.  In the meantime, retailers would be cautioned against excluding a religious job applicant from employment on the basis of a dress code policy simply because the applicant does not affirmatively request an accommodation.

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