A suit brought by the Equal Employment Opportunity Commission (EEOC) against national clothing retailer Abercrombie & Fitch Stores, Inc., demonstrates why employers should carefully review any dress code policies with counsel, particularly as they may conflict with attire worn for religious reasons. Interestingly, the case could have important ramifications not only for employers but also employees.

Abercrombie & Fitch is defending its “look policy” against claims that it discriminated against a Muslim woman based on her religious beliefs when it chose not to hire her because she wore a black headscarf (hijab) to a job interview at the Woodland Hills Mall in Tulsa, Oklahoma. The popular retailer’s look policy is intended to promote and showcase the Abercrombie brand, which it says “exemplifies a classic East Coast collegiate style of clothing.” The company’s sales floor employees are referred to as “models” and are required to dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores. They are prohibited from wearing black clothing and may not wear a “cap,” a term which is not defined in the company’s policy.

In 2008, Samantha Elauf, then seventeen years old and a claimed practicing Muslim, interviewed for a model position with the Woodland Hills Mall store wearing a black hijab. During the course of the interview, Elauf made no mention of her religion, her headscarf, or the need for an accommodation to address the conflict between the company’s look policy and the headscarf. Although Elauf was found to be otherwise suitable for the model position, she was not hired because her headscarf was deemed to be inconsistent with company policy.

The district court granted summary judgment in favor of the EEOC and the Court of Appeals for the Tenth Circuit reversed, finding that the company could not be held liable because Elauf did not directly and explicitly notify the company that she wore the headscarf for religious reasons and would need an exemption from the retailer’s look policy.

On October 2, 2014, the Supreme Court agreed to hear the case which commentators say will turn on the issue of notice. If the Tenth Circuit decision is affirmed, employees and job applicants will need to notify employers of their religious beliefs and the need for any reasonable accommodation, which clearly takes the guesswork out of the equation for employers. If, on the other hand, the court overrules the Tenth Circuit and places the burden on employers, employers will find themselves at risk for claims of stereotyping if they ask about religious beliefs while also facing liability for not anticipating a possible need for accommodation. Briefing in the case will not be completed until early 2015.

If you have any questions about your company’s policies, or how this case could impact your business, please contact:

• Madeline S. Baio (267.519.6825; mbaio@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group.