The Employer's Legal Resource: Good News For Employers-Tenth Circuit Enters Judgment Against EEOC And In Favor Of Abercrombie & Fitch

11.1.13

Abercrombie & Fitch has a "Look Policy" which requires that its sales people dress in clothing consistent with the kinds of clothing that it sells. The Look Policy prohibits sales people from wearing black clothing and from wearing "caps."

Samantha Elauf applied for a position at the Abercrombie Kids store in Woodland Hills Mall. She was aware of the Abercrombie brand, having previously purchased and worn Abercrombie clothes. Ms. Elauf is a practicing Muslim who wears a hijab. She wore a black hijab to the interview. During the interview, there was discussion of the Look Policy, including that she would not be able to wear heavy makeup or nail polish. There was not, however, any discussion of the hijab by either Ms. Elauf or the interviewer. At the end of the interview, Ms. Elauf was asked if she had any questions to which she replied, no.

Although the interviewer thought Ms. Elauf a good candidate, she was unsure about the fact that Ms. Elauf had worn a hijab, or, as she described it, a "headscarf" to the interview. The interviewer believed it likely that Ms. Elauf wore the headscarf for religious reasons. She consulted with superiors in the company. She was told that Ms. Elauf should not be hired because the black headscarf was inconsistent with the Look Policy.

Ms. Elauf later learned that she was not hired because she had worn a black headscarf to her interview. She filed a charge of discrimination with the Equal Employment Opportunity Commission who filed a lawsuit against Abercrombie on her behalf.

At the trial court, both the EEOC and Abercrombie filed motions for summary judgment, asking the Court to enter judgment in their favor without the necessity of a jury trial. The trial court entered judgment in favor of the EEOC finding Abercrombie liable. The case then went to trial on the issues of damages, and the jury awarded Ms. Elauf $20,000.

Abercrombie appealed to the Tenth Circuit Court of Appeals. The Tenth Circuit reversed the trial court and the jury trial's award of damages and entered judgment in favor of Abercrombie.

The Tenth Circuit, after reviewing all of the evidence, found that the EEOC could not win for one simple reason -

"Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie's clothing policy."

The Tenth Circuit issued a 76 page opinion describing the facts and supporting its position that employees desiring a religious accommodation must provide notice to the employer of the need for a religious accommodation. Without providing such notice to Abercrombie, Abercrombie was under no obligation to engage in the process to determine if a reasonable accommodation could be provided.

This is very good news for employers who have often struggled with this issue. Employers need not and should not guess or make assumptions about an employee's religious beliefs or needs. The old adage of "do not judge a book by its cover" holds true. Unless your employee asks for an accommodation and informs you it is due to a religious belief, you need not assume it is a request for a religious accommodation - at least in those states governed by the Tenth Circuit (Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah).

Abercrombie & Fitch was represented by Vorys Sater of Columbus, Ohio, and Doerner Saunders. To read the full opinion, click here.

By Kristen L. Brightmire, kbrightmire@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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