The Employer's Legal Resource: Get Your Response to a Charge Right the First Time!

05.01.13

On April 9, Abercrombie & Fitch Stores, Inc. lost a motion for summary judgment and may have to go to a costly jury trial in a Northern California case involving a Muslim applicant that Abercrombie allegedly refused to hire because her religious headscarf violated Abercrombie's "Look Policy." There are several lessons that employers can learn from this case about minimizing the risk of religious discrimination claims, about the hiring process, and about responding to charges of discrimination.

Lesson 1:
Don't deviate from your hiring script or other steps in your hiring process-it creates the appearance of potential discrimination.

Lesson 2:
Make sure the steps in your process are crystal clear-Abercrombie couldn't prove for which job the plaintiff applied.

Lesson 3:
Treat your response to an EEOC charge like a motion for summary judgment-be thorough and be accurate so you don't have to make changes later.

Bonus:
The explanation you give the EEOC in response to the charge should be the same explanation you give the court if (and when) litigation ensues.

If you want the details, read on.

Abercrombie's Look Policy, History of Religious Accommodations, and the Interview Process

Abercrombie maintains a "Look Policy" with guidelines regarding clothing employees must wear. The policy requires clothes similar to Abercrombie's core style. The policy barred employees from wearing "caps" and all forms of headwear. Abercrombie has made at least seventy exceptions to its policy. The exceptions have included religious accommodations of various types, including allowing hijabs on a case-by-case basis. To standardize its interview process, Abercrombie uses a "People Selection Program," in which all managers are trained. The Program provides a script called the "Interview Guide." Managers are trained to follow the Guide closely and not ask questions outside the guide, such as questions about the applicant's religion. If questions about religion or religious accommodations arise, the interviewing manager is taught to contact HR. Each applicant is given an interview score.

What Went Wrong in This Case

Halla Banafa, a Muslim teenager, applied for a part-time job. She wore an Islamic head scarf (hijab) to her interview. Janet Canasa, a manager, interviewed Banafa. The parties disputed the details of the conversation during the interview. EEOC alleged that Canasa asked Banafa, "you're Muslim, right?" Banafa confirmed. Canasa allegedly replied, "I thought so because of your ..." while moving her hands around her head, referring to the hijab. Canasa then allegedly asked whether Banafa was required to wear a hijab, and Banafa said "yes." Canasa reviewed Abercrombie's policies with Banafa, including the Look Policy. Banafa asked whether her head scarf would be a problem. Canasa told Banafa she did not believe it would be a problem, but needed to confirm. Canasa took notes and recorded that Banafa was not "Abercrombie look." Canasa did, however, give Banafa a score high enough to recommend her for hire. Nevertheless, Canasa did not offer Banafa the job and did not consult with her district manager or HR about Banafa's questions concerning the hijab or any accommodations that might be considered.

Abercrombie contends that after discussing diversity and its Look Policy, Canasa asked if Banafa was Muslim and if she had to wear a head scarf. Canasa said she knew Muslims who did not wear hijabs. Later, Canasa informed Banafa that she could not wear a turtleneck in the summer and that her red nail polish and nose ring were inconsistent with the Look Policy. After the interview, Canasa reviewed Banafa's availability. Banafa indicated she was not available Monday through Thursday. In the litigation, Abercrombie asserted that Canasa rejected Banafa due to her limited availability and it being the retail low season. Significantly, Abercrombie essentially conceded that Canasa didn't follow the script-she asked questions of a religious nature that weren't on the Interview Guide. Not only that, Canasa failed to follow the established process. She didn't take Banafa's question about the hijab and the fact that a religious issue came up in the interview to HR, as she was supposed to have done. Had she done so, HR could have helped address the situation properly in accord with established policy. Lesson: Managers must be trained to follow the process carefully.

Proper Comparators

Because Abercrombie could not prove that Banafa applied only for a job in its kid's store, the court concluded that there existed a question of fact for the jury as to whether Banafa also had applied for the adult store (located at the same mall as the kid's store). If Abercrombie could have proved that Banafa only applied for the kids store job, there would have been no comparators that Abercrombie had hired who were less qualified than Banafa. But, Abercrombie had hired 12 people for part-time jobs in the adult store at the relevant time, and three received lower interview scores than Banafa. Lesson: make sure each step of your hiring process is clear.

Big Holes in Abercrombie's "Legitimate, Non-Discriminatory" Reason for Rejecting Banafa

Abercrombie argued that during the retail "low season," hiring managers must consider the store's needs and candidates' availability. Banafa applied during the "low season" in retail. Canasa found Ms. Banafa's availability to be "particularly problematic" in light of the low season and consequently refused to hire her.

Big Hole #1: Abercrombie hired several people who scored lower at the interview than Banafa who were not Muslim, and several employees testified that Banafa's alleged unavailability was really not an issue at all. Lesson: you have to be alert to what co-workers will say-they're often a huge source of a great scoop and make great witnesses.

Big Hole #2: Abercrombie's story kept changing, which significantly undermined Canasa's credibility. EEOC gave several examples of inconsistencies in Abercrombie's position that suggested Canasa changed her stated reason for not hiring Banafa mid-way through this litigation. In her first sworn statement to the EEOC in response to the Charge of Discrimination, Canasa stated that Banafa "was not hired because she was not the most qualified." Two weeks later Canasa submitted a supplemental statement to the EEOC, but did not elaborate on her reason for rejecting Banafa. In response to the EEOC's request for additional information, Abercrombie's counsel reiterated that Canasa did not hire Banafa because "she was not sufficiently outgoing and engaging." Two years later, Canasa maintained this justification, explaining to the EEOC's investigator that she did not hire Banafa "because she was not very outgoing, confident." Canasa never mentioned Banafa's availability until four years later during the course of the litigation during Canasa's deposition. For these reasons, the Court concluded that the EEOC submitted sufficient evidence to raise a question of fact as to whether Canasa's reasons for rejecting Banafa have changed and are therefore false or a pretext for discrimination. Lesson: you must take your EEOC response very seriously.

If you receive a charge of discrimination, please feel free to seek the help of one of our employment lawyers. We would be glad to help you.

By Christopher S. Thrutchley, cthrutchley@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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