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U.S. Supreme Court rules against Tulsa Abercrombie & Fitch in religious discrimination lawsuit over headscarf

published in McAfee & Taft EmployerLINC Alert | June 2, 2015

By Charles S. Plumb

On Monday, the U.S. Supreme Court ruled in favor of the Equal Employment Opportunity Commission and against Abercrombie & Fitch Stores Inc. in a religious discrimination lawsuit involving a Muslim job applicant at its Tulsa, Oklahoma, store. In some ways, the Supreme Court’s decision may have the unintended result of causing some employers to ask applicants and employees about their religious beliefs or trigger unfortunate workplace stereotyping.

Religious discrimination

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of religion or religious practices. Unlike some other employment discrimination laws that only require workplace neutrality by an employer – i.e., treating all employees the same – Title VII affords religion “favored treatment.” The law affirmatively obligates employers to accommodate religious practices that do not impose an undue hardship. An applicant’s religious practices cannot be a motivating factor in an employer’s hiring decision. As an example, an employer should not reject a job candidate based on its desire to avoid the need to accommodate the candidate’s religious practices.

Abercrombie rejects Tulsa applicant

Abercrombie subscribed to a “Look Policy” for its employees, which was aimed at projecting the stores’ desired image. The Look Policy prohibited employees from wearing “caps.” Samantha Elauf, a practicing Muslim, wore her headscarf when she applied for a position at Abercrombie’s Woodland Hills Mall store in Tulsa. Assistant manager Heather Cooke interviewed Elauf and rated her as qualified. During the interview, they did not discuss the headscarf. When Cooke informed district manager Randall Johnson that she believed Elauf wore the headscarf based on her faith, Johnson concluded the headscarf violated Abercrombie’s Look Policy and directed Cooke not to hire Elauf. Based upon Abercrombie’s failure to hire, the EEOC filed a religious discrimination lawsuit against the employer on Elauf’s behalf. After the EEOC filed its lawsuit against the employer, Abercrombie began an overhaul of its Look Policy.

Supreme Court weighs in

EMTAlthough Cooke and Johnson may have assumed as much, Abercrombie emphasized it did not have actual knowledge that Elauf wore her headscarf for religious purposes and did not have actual knowledge that Elauf would need an accommodation permitting her to wear the headscarf in violation of the store’s Look Policy. Nevertheless, the Supreme Court found against Abercrombie, noting that Title VII’s religious discrimination provision did not include an actual knowledge requirement. According to the court, an employer violates the anti-discrimination law when an applicant’s religion or religious practice is a factor in a hiring decision, even in those cases where the employer has only a belief or suspicion about the need for accommodation. Here, Cooke and Johnson’s unconfirmed assumption that Elauf’s headscarf was a religious practice, followed by a hiring decision based on that unconfirmed assumption, was enough to hold Abercrombie liable for religious discrimination.

This alert has been provided for clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and is not intended to create a lawyer-client relationship. Readers should not act upon information in this alert without seeking professional counsel.