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Religious Accommodations

The clothing store Abercrombie & Fitch requires its employees to comply with a "Look Policy." The policy is intended to promote and showcase the Abercrombie brand, which exemplifies a classic East Coast collegiate style of clothing. Employees must dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores. Notably, the policy prohibits employees from wearing any black clothing or "caps." An employee is subject to disciplinary action up to and including termination for failure to comply with the policy. The store contends that its policy is critical to the health and vitality of the brand because it relies on its in-store experience to promote its products. The store-front employees, called "models," may not wear inconsistent clothing because Abercrombie claims it inaccurately represents the brand, causes customer confusion, fails to perform the essential function of the position, and ultimately damages the brand.

Abercrombie instructs its store managers not to assume facts about prospective employees in job interviews and, significantly, not to ask applicants about their religion. However, managers assess applicants on appearance and style during the interview. If a question arises during the interview regarding application of the Look Policy, or if a prospective employee requests a deviation from the policy, the manager is instructed to contact Abercrombie's human resources ("HR"), or his or her direct supervisor. HR managers may grant accommodations if doing so would not harm the brand.

Ms. Elauf is a practicing Muslim. In 2008, Ms. Elauf applied for a "model" position at the Abercrombie Kids store in Oklahoma. She discussed her hijab, a veil, or head covering worn by Muslim women in public, which she'd worn since the age of thirteen, with her friend, who asked the assistant store manager if she would be allowed to work there and wear it. Ms. Elauf was told she could wear a hijab as long as it was not black. The interview was conducted and Ms. Elauf wore a black hijab to the interview. The interviewer, Ms. Cooke, never asked Ms. Elauf about her religion, similarly, Ms. Elauf never told Ms. Cooke that she was Muslim, never brought up the subject of her headscarf, never said she wore it for religious reasons, and did not ask for an accommodation to address the conflict between her religious practice and Abercrombie's clothing policy. Utilizing Abercrombie's official interview guide with a series of categories ranked on a three-point scale, Ms. Cooke rated Ms. Elauf highly and recommended her for hire. However, when Ms. Cooke asked her assistant manager about the head scarf, she was told to lower Ms. Elauf's score so she would not be hired.

The EEOC filed the instant action against Abercrombie on September 17, 2009 stating that the refusal to hire Ms. Elauf was a failure to accommodate based on religious beliefs. Abercrombie argued that Ms. Elauf failed to inform it of the conflict between the Look Policy and her religious practices, further arguing that allowing her to wear a headscarf would have imposed an undue hardship on the company. The trial court granted a partial summary judgment for the EEOC as to liability. The damages went to the jury and ended in a verdict $20,000.00 for the EEOC. Abercrombie filed this appeal to the United States Court of Appeals for the Tenth Circuit on the granting of summary judgment.

The Tenth Circuit Court of Appeals held that the district court erred in not granting summary judgment to Abercrombie because Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs, and that Ms. Elauf would need an accommodation due to a conflict between Abercrombie's clothing policy and the claimant's religious beliefs.

Title VII makes it unlawful to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of such individual's religion. Religion includes traditional, organized religions such as Christianity, Judaism, Hinduism and Buddhism, as well as, religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. The accommodation aspect falls under a discrimination claim where the employee seeks an adjustment to a neutral work rule as it infringes on the employee's ability to practice his or her religion. However, the reasonable-accommodation principle is implicated only when there is a conflict between the employee's religious practice and the employer's neutral policy. Further, the EEOC has specifically cautioned employers not to assume or stereotype based on religious dress or grooming practices. Thus, it is only after an employer is put on notice of the need for a religious accommodation that the employer may discuss religion and possible accommodations with the employee. In this case, the Court determined that Ms. Elauf did not inform Abercrombie of the conflict and therefore, she could establish a claim for failure to provide religious accommodations.

If you have a question regarding a religious accommodation in your workplace, contact an attorney to discuss you legal rights.

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