Samantha Elauf applied for a ‘model’ or floor position with Abercrombie Kids. Elauf is a Muslim, who wears a headscarf for religious reasons. Abercrombie’s dress code emphasizes a ‘preppy’, classic Ivy League, collegiate style of clothing’ that does not permit any headgear, including headscarves. Title VII requires employers to ‘reasonably accommodate’ an applicant’s religious practice, unless the employer can prove that such accommodation would present an ‘undue hardship’. The specific question before the Supreme Court is whether Abercrombie had the duty to accommodate Elauf when it assumed, but wasn’t told by Elauf, that her headscarf was religious in nature.
It seems that Abercrombie has been able to do what most of the rest of the world has been trying to do for centuries….unite the major religions of the world…16….yes, 16 different religions have joined this lawsuit in support of Samantha Elauf and against Abercrombie.
Let’s back up a little. I loathe Abercrombie & Fitch….I mean, I loathe the retailer. When my daughter was young(er), I spent a small fortune (at least for me) in that store; she wanted to dress like her friends and we shopped there quite often. After we realized that spending that kind of money on clothes from a store in a mall was simply outrageous, we backed off. The quality of the clothes from A&F was not remotely acceptable to me. A shirt could cost upward of $70 and she would only get one (1) season out of it….I think the only advantage that I helped my daughter gain by shopping at Abercrombie is the ability to recognize good quality workmanship in clothing….something that did not and does not exist with this retailer.
What the defense is stating is that Abercrombie perceived Elauf’s headscarf to have religious significance and then acted on this perception by downgrading, on the basis of the headscarf alone, Elauf’s interview score such that she would not be recommended for a position.
This case is not only about discrimination, but also about employers’ attempts to utilize dress codes as a mechanism to regulate the presence of the visibly religious in our public spaces.
In lawsuits filed in the past under Title VII of the Civil Rights Act of 1964, the federal statute prohibiting employment discrimination, courts have permitted employers to avoid hiring visibly religious applicants who do not conform to the employers’ dress code or expectations of appearance.
In the Human Resources’ world, there is a special accommodation called a BFOQ…Bona Fide Occupational Qualification…if an employer needs a swimsuit model for a line of female, young adult bikini bathing suits…they are not going to hire a man, an older woman, etc. They will hire someone who fits the image they want to represent….They are permitted to discriminate on the basis of religion, sex or national origin only when these attributes are necessary for the
operation of a business…however, race is never permitted to be a BFOQ. This situation would not fit into the BFOQ accommodation, but I could be wrong.
It turns out that when Samantha Elauf sat down for her interview with the assistant manager to formally interview for the job, the topic of the headscarf that she was wearing nor her religion ever came up. The assistant manager did refer to the A&F policy of not wearing a lot of make up, black clothing or nail polish. The assistant manager, Health Cooke, felt that Samantha Elauf was qualified for the job, however, she sought approval from her district manager regarding the headscarf. She says that she told the manager that she assumed (key word here) that Elauf was Muslim and she figured Elauf wore the headscarf for religious reasons. The district manager told Cooke that Elauf would not be hired because the scarf was ‘inconsistent’ with the ‘look policy’.
The EEOC (Equal Employment Opportunity Commission) sued on Elauf’s behalf saying that the store had discriminated on the basis of religion in violation of Title VII of the Civil Rights Act of 1964. The law makes it illegal for an employer to ‘refuse to hire’ an individual because of an individual’s religion unless an employer can demonstrate that they are unable to reasonably accommodate a religious observance or practice ‘without undue hardship on the conduct of the employer’s business’.
The issue going forward is that the Appeals Court voted in favor of A&F due to the fact that Elauf never informed them that she wore the scarf for her religious beliefs and that she needed an accommodation because her headscarf conflicted with the store’s clothing policy. Friends of the court have stated that A&F’s claim is both absurd and a dangerous precedent for people of faith seeking an exception. They state that the potential employee can’t be forced to say certain words before the potential employee’s religion is protected.
I certainly wish Samantha Elauf would have shown (or even known) better taste than to go to Abercrombie & Fitch to apply for a job. She would have been better off applying for a position in one of many other young adult clothing stores that offers rich, classic quality without the obnoxious presence of poor quality and dismal employment prospects. She should have learned to embrace being ‘uncool’ and appreciate the fact that her faith helps make her so very unique (I’m hoping she has by now since the incident before the Supreme Court happened a number of years ago).
This is an interesting and complicated case that could have a number of varied endings. If you have any questions or would like to discuss any type of accommodations in your work environment, please contact me, Rosanne Bennett at email@example.com or call me at 484-798-1236.