Known for being a staple in preppy closets worldwide, the clothing retailer Abercrombie & Fitch finds itself in a more serious setting – the Supreme Court of the United States. Recently, the Supreme Court heard oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc. The case centers on Abercrombie’s refusal to hire Samantha Elauf, a practicing Muslim, because of her decision to wear a religious headscarf, or hijab to her job interview. Elauf and the Equal Employment Opportunity Commission (EEOC) brought suit against Abercrombie alleging a Title VII violation for refusing to hire an employee due to a “religious observance and practice” that could be reasonably accommodated. Abercrombie contends that its decision was based on the company’s “Look Policy,” which prevents employees from wearing “caps,” and was not aware Elauf wore the headscarf due to religious reasons. As the Supreme Court contemplates its verdict, the looming decision will set a strong precedent for religious rights in the workplace.
At the forefront of the lawsuit is Abercrombie’s “Look Policy.” The policy articulates what its “sales models” can wear when working in the company’s retail stores. Individuals are barred from wearing black clothing and “caps.” However, the company does not explicitly define what items of clothing constitute a “cap.” On the day of her interview, Elauf showed up in “preppy” clothes and wore a black hijab. Heather Cooke, the assistant manager, interviewed Elauf and determined she was highly qualified and should expect a call about orientation in the next few days. However, no such call materialized. Instead, Cooke’s supervisor informed her that Elauf’s headscarf violated company policy and thus no offer of employment should be extended. Although Elauf was never explicitly asked why she wore the headscarf in her interview, Cooke testified that she told her supervisor it was due to religious reasons, but was still instructed not to hire her. Both the company and supervisor deny Cooke’s assertion.
The case has the potential to be a landmark decision because it will determine whether an applicant or employee must first explicitly communicate a religious accommodation request before an employer can be subject to liability under Title VII. The EEOC argues that an employer should not be immune from liability if the employer has an understanding of an applicant or employee’s religious practice and that understanding is correct. In the instant case, the assistant manager knew Elauf wore a headscarf because she was Muslim even though Elauf did not explicitly say so. Therefore, the EEOC contends that Abercrombie’s decision to not hire Elauf is a violation of Title VII because the company indirectly knew why Elauf wore the headscarf but refused to accommodate her religious practice.
Conversely, Abercrombie argues that placing this burden on employers is unfair and tricky. The company says that anti-discrimination laws protect all would-be applicants and requiring employers to be familiar with all religious practices is unjust and illogical. Additionally, the company states that employers are prohibited from asking questions regarding religious affiliation and therefore such inquiries by employers would violate existing discrimination laws. Most justices were unconvinced of Abercrombie’s arguments. Instead, they suggested that employers could ask questions such as “We have a no-beards policy, or a no-headscarf policy; would you have a problem with that?” These inquiries would address potential religious accommodation concerns while simultaneously allowing employers to remain within the confines of anti-discrimination guidelines. Additionally, Justice Kagan did not buy Abercrombie’s argument that potential religious assumptions about applicants would lead to hiring managers stereotyping candidates. Instead, Kagan noted that it is better to have some “awkward conversations” than an applicant not get a job at all.
The Supreme Court’s decision will be crucial to the scope of Title VII. If the Court decides that employers cannot be subject to liability under Title VII unless explicit notice of a religious accommodation was communicated, the scope of Title VII would be severely diminished. However the justices’ remarks during oral arguments suggest such an outcome is highly unlikely. Instead, it is likely that the Supreme Court will rule that employers will not be able to feign ignorance in hopes of avoiding Title VII liability.
Elauf’s experience is not an isolated incident. Abercrombie has faced similar lawsuits in the past, which reached out-of-court settlements. Realizing the ever-growing diversity in the workforce, other companies are following the path of assimilation in hopes of accommodating potential religious practices. Furniture giant Ikea has navy blue and yellow headscarves with the company’s logo that Muslim women can wear at work. As Ikea demonstrates, the path of confrontation is not the only avenue available to employer and employees in such situations. The work environment can greatly improve if both parties effectively communicate in order to address the potential concerns and needs of one another. Frankly, workers will want to work diligently for those employers who embrace religious diversity. In essence, the employer-employee narrative has the potential to be a symbiotic relationship if potential religious accommodations are discussed rather than avoided. The Supreme Court’s forthcoming decision will inevitably influence the trajectory of such relationships.
*Afzal Karim is a second year law student at Wake Forest University School of Law. He holds a Bachelor of Arts in Political Science and African American Studies from The University of North Carolina at Chapel Hill. Upon graduation, he intends to pursue a career in business litigation.