Clothing retailer Abercrombie & Fitch grabbed headlines last fall when a federal court ruled against it in a religious discrimination case involving the termination of a Muslim employee for wearing a headscarf known as a “hijab.”
The employer ended up quickly settling the case along with another case involving similar allegations. The cases highlight the risks of not accommodating religious beliefs.
The laws on religious discrimination
Both federal Title VII and the California Fair Employment and Housing Act (FEHA) generally prohibit religion-based discrimination, harassment, and retaliation and require you to reasonably accommodate employees and applicants’ religious beliefs and practices. Since January 1, 2013, FEHA has included religious dress and grooming practices as protected beliefs.
Title VII exempts religious organizations and religious educational institutions, while FEHA exempts religious associations and nonprofit organizations. Neither Title VII nor FEHA requires you to provide an accommodation if it would be an "undue hardship."
The Abercrombie cases
The U.S. Equal Employment Opportunity Commission (EEOC) has filed three Title VII discrimination lawsuits against Abercrombie on behalf of Muslim applicants or employees in recent years.
In its 2009 discrimination lawsuit on behalf of 17-year-old Samantha Elauf, the EEOC charged that an Abercrombie Kids store in Tulsa, Oklahoma, didn’t hire her for a sales position because she wore a hijab in observance of her sincerely held religious beliefs. The district court granted judgment in favor of the EEOC.
It found that the company refused to hire Elauf because she wore the hijab during her interview. The hijab violated Abercrombie’s "Look Policy," an internal dress code that prohibits head coverings. The court noted that the employer had allowed numerous exceptions to the policy, including at least eight headscarf exceptions, undermining Abercrombie’s claim of undue hardship.
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In 2010, the EEOC brought a lawsuit on behalf of 18-year-old Halla Banafa. According to the EEOC, Banafa applied for a job stocking merchandise at the Abercrombie Kids store in the Great Mall in the Silicon Valley city of Milpitas and wore a hijab to her interview.
The interviewer asked Banafa if she was Muslim and must wear the scarf, and proceeded to mark "not Abercrombie look" on the interview form. Banafa was not hired. The EEOC alleged the employer unlawfully refused to accommodate the applicant’s religious beliefs by granting an exception to the Look Policy.
In an April 2013 ruling, the trial court dismissed Abercrombie’s undue hardship defense before trial, citing the "dearth of proof" linking store performance or the Abercrombie brand image to Look Policy compliance.
The EEOC filed a third discrimination lawsuit against Abercrombie in 2011 for another Muslim teenager, Umme-Hani Khan, who was fired from her stockroom job in a San Mateo store. When she began the job in October 2009, she was allowed to wear headscarves as long as they were in the store’s colors. In mid-February 2010, however, she was informed that her hijab violated the Look Policy. She was fired on February 23 for refusing to remove the hijab.
The district court found Abercrombie liable for religious discrimination in early September 2013. The employer’s undue hardship claim was again rejected because of the lack of credible evidence that deviating from the Look Policy threatens the company’s success. A trial limited to determining the proper award was set for September 30.
What happened next? We’ll tell all tomorrow—and give you some practical tips for avoiding religion bias claims in your workplace.
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You have to wonder how a company as large as Abercrombie can be so clueless.