What Right Do You Have to Discriminate?

by Jewel-Ann O. Cornelius

The CEO of Abercrombie & Fitch stated in 2006, “We go after the attractive all-American kid with a great attitude and a lot of friends. A lot of people don’t belong [in our clothes], and they can’t belong. Are we exclusionary? Absolutely. Those companies that are in trouble are trying to target everybody: young, old, fat, skinny.”[1] CEO’s must recognize that although they are entitled to manage and identify their own brands and niche markets, they must do so in a lawful manner.

In October 2014 the Supreme Court decided it would hear a case involving a Muslim teenager named Samantha Elauf, from Tulsa, OK. Ms. Elauf was not hired as a result of her wearing a hijab, which is a “traditional covering for the hair and neck that is worn by Muslim women.”[2] According to the Equal Employment Opportunity Commission (hereinafter “EEOC”), Abercrombie discriminated against Ms. Elauf when it failed to accommodate her religious beliefs by making an exception to its Look Policy.[3] Abercrombie’s Look Policy specifies that associates must dress consistent with the brand and cannot wear hats or other coverings on their head.[4] Additionally, employees are forbidden from wearing the color black—the color of the hijab Ms. Elauf wore on the interview.[5]

Abercrombie & Fitch has gotten itself into hot water over religious accommodations or the lack thereof in times past. In 2009, Umme-Hani Khan was fired after working for Abercrombie for several months.[6] During her employment, she wore her headscarf and followed the company dress code without any citations.[7] After a store visit from an upper-level store manager, she was asked twice to remove her hijab at work—she refused to on both occasions.[8] Khan was terminated for her failure to comply with Abercrombie & Fitch’s Look Policy.[9] Eleven days after Khan’s termination, Abercrombie offered her a reinstatement with the accommodation of wearing her hijab to work.[10] Khan declined the offer and filed a charge of discrimination with the EEOC.[11]

The EEOC and Abercrombie made attempts to conciliate, but Abercrombie was unwilling to incorporate language that would allow all employees to wear a headscarf.[12] Due to Abercrombie and EEOC’s inability to conciliate, the case proceeded. Ultimately, the court was not persuaded that Khan’s religious garb would have a negative effect on the business.[13] As a result, the court granted the EEOC’s motion for partial summary judgment on its claim that Abercrombie failed to accommodate Khan’s religious belief that required her to wear a hijab while at work.[14]

The United States Code sets forth: “it shall be an unlawful employment practice for an employer—to fail or refuse to hire or discharge any individual, or otherwise to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race color, religion, sex, or national origin.”[15]

Employers should note that they must demonstrate their inability to accommodate a religious observance, practice, or belief without undue hardship on the conduct of the employer’s business.[16] The undue hardship defense in a claim such as Elauf’s and Khan’s would be successful only when the defense is based on facts that prove an undue hardship on the business.[17] The undue hardship cannot be a mere conceivable hardship based on one’s own subjective thinking.[18] “Rather, undue hardship requires proof of actual imposition or disruption.”[19]

Abercrombie was not able to proffer evidence that could support that its business suffered as a result.[20] There were no customer complaints about the hijab, and Abercrombie did not suffer a decrease in sales.[21] While the public awaits the Supreme Court’s recommendations, employers and employees should be mindful of the impact this will have on their futures. Employers may have to gear up to accept the changes religion may have on their brands. For employees, they may have to carefully choose where they apply for employment, and may even have to share desired accommodations during an interview.

[1] Irin Carmon, Supreme Court to Hear Abercrombie & Fitch Discrimination Case, MSNBC (Oct. 2, 2014, 3:44 PM), http://www.msnbc.com/msnbc/supreme-court-hear-abercrombie-fitch-discrimination-case.

[2] Sean Gregory, Abercrombie Faces a Muslim-Headscarf Lawsuit, Time (Sept. 23, 2009); Hijab — Definition and More from the Merriam-Webster Dictionary, Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/hijab (last visited Mar. 8, 2015).

[3] Id.

[4] Id.

[5] Id.

[6] United States EEOC v. Abercrombie & Fitch Stores, Inc., 966 F. Supp. 2d 949, 955 (N.D. Cal. 2013).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 956.

[12] Id. at 956-957.

[13] See id. at 965.

[14] Id.

[15] 42 U.S.C. § 2000e-2(a)(1) (2014) (emphasis added).

[16] 42 U.S.C § 2000e-(j) (2014).

[17] Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978).

[18] Id.

[19] Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981) (citing Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 402) (9th Cir. 1978).

[20] United States EEOC v. Abercrombie & Fitch Stores, Inc., 966 F. Supp. 2d 949, 964 (N.D. Cal. 2013).

[21] Id. at 965.

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