Mcle Self-study: Accommodating Religious Dress and Observances in the Workplace (considerations Raised by Eeoc v. Abercrombie & Fitch)

• Publication year: 2015
• Author: By Tyler Paetkau

MCLE Self-Study: Accommodating Religious Dress and Observances in the Workplace (Considerations Raised by EEOC v. Abercrombie & Fitch)

By Tyler Paetkau

Tyler Paetkau is a partner with Hartnett, Smith & Paetkau in Redwood City. He is past Chair of the Executive Committee of the State Bar of California's Labor and Employment Law Section, and a longtime member of the Law Review's Editorial Board. Mr. Paetkau represents employers in all aspects of labor and employment law. He can be reached at tpaetkau@hslawoffice.com.

I. INTRODUCTION

An applicant arrives for her job interview at a large national retailer wearing a headscarf, which the hiring manager recognizes to be a hijab, often worn by devout Muslim women. Although the manager (correctly) suspects that the applicant is wearing the hijab for religious reasons, she is trained not to ask applicants about their religious beliefs and practices. The applicant does not volunteer that she is wearing the hijab for religious reasons. The manager declines to offer the applicant a job based on the employer's grooming and dress policy, which prohibits employees from wearing any clothing on their heads. Did the employer violate federal or state employment laws prohibiting religious discrimination, and requiring employers to make reasonable accommodations for an applicant's religious beliefs and practices?

The narrow question presented in EEOC v. Abercrombie & Fitch Stores, Inc.,¹ an important religious accommodation case pending before the U.S. Supreme Court, is whether an employer engages in intentional religious discrimination by enforcing a religion-neutral employment policy against an employee or applicant if the employer correctly assumes that the individual's non-compliance is motivated by religion. But the case raises a host of other legal and practical issues confronting employers and employees in increasingly frequent religious discrimination and accommodation cases. This article discusses the Abercrombie case and provides an overview of current employee and employer rights and obligations with respect to religious discrimination and accommodation.

II. EEOC v. ABERCROMBIE & FITCH

A. Abercrombie Refused to Hire the Applicant Because Her Headscarf Violated Its "Look Policy"

Like many retailers, Abercrombie & Fitch (Abercrombie) maintains comprehensive dress and grooming standards that generally apply to all customer-facing employees. Abercrombie declined to hire the plaintiff, Samantha Elauf, because she wore a headscarf that did not comply with its religion-neutral "Look Policy." The EEOC claims that Abercrombie engaged in intentional religious discrimination under Title VII.

Abercrombie runs a family of clothing stores that market three clothing brands to children, teenagers, and young adults. According to Abercrombie's briefs, these target demographics are tough customers. To stand out, Abercrombie relies on the strength of its brands and works to ensure that brand identities are carefully maintained and consistently presented. Abercrombie's employees create a strong in-store brand experience. As one executive explained, when customers walk into the store, the first part of Abercrombie's advertising is to ensure that they see floor associates, referred to as "Models," who "project[] and protect[] the image of the brand through personal style." To ensure consistent brand messaging, Abercrombie adopted the detailed dress and grooming standards contained in its "Look Policy." The Look Policy requires employees to "wear clothes that are similar to the Abercrombie & Fitch brand." It also contains a host of more specific proscriptions. For example, it prohibits facial hair, obvious tattoos, and long fingernails, and it sets forth guidelines regarding how employees may style their hair and wear their makeup. Abercrombie's Look Policy prohibits "all headgear," in keeping with the general rule that employees may only wear clothing similar to what Abercrombie sells. Abercrombie's Model job description provides that Models will "represent[] the brand" by "[c]reat[ing] a fun and engaging environment," "upholding Abercrombie's vision and standards," and "[a]dher[ing] to Abercrombie guidelines in personal appearance."

At the end of every job interview, the Abercrombie manager reads a description of the Look Policy and informs applicants that they must wear clothing similar to what Abercrombie sells and otherwise follow specific dress and grooming guidelines. The manager also asks if applicants have any questions about the Look Policy. Notwithstanding the importance of the Look Policy, Abercrombie has established procedures to offer limited exceptions where doing so would not cause an undue hardship. Abercrombie instructs store managers that if an applicant or employee requests an accommodation, or if a store manager has an accommodation-related question, then the manager should call Abercrombie's H.R. professionals using a special hotline. Those professionals evaluate the request and "try to find some way to make the accommodation," provided that one can be offered without undue burden, i.e., "taking us off brand."

[Page 8]

In 2008, Samantha Elauf applied for a Model position at an abercrombie kids store. Although some women wear headscarves for nonreligious cultural or political reasons, or simply as a style preference, Ms. Elauf wears one for religious reasons. She knew, however, that Abercrombie expects its employees to wear clothing similar to the clothes it sells. Ms. Elauf consulted her friend, Farisa Sepahvand, herself an Abercrombie employee at the time, who reported that "[i]t's kind of common sense. . . . [W]hen you go in the store, everyone's . . . wearing polos and regular jeans and white Converse." Before applying, Elauf asked Sepahvand whether she could work at Abercrombie and wear a headscarf. Sepahvand asked one of the store's assistant managers, who stated that he thought it should be "okay," provided that the headscarf was not black; Abercrombie did not sell black clothes, so it generally did not permit employees to wear them. Sepahvand, in turn, told Elauf that she could not wear a black headscarf. Elauf knew that Abercrombie also did not generally sell headscarves.

When Elauf applied for a Model position, she met with another one of the store's assistant managers, Heather Cooke. Despite Sepahvand's advice, Elauf wore a black headscarf to the interview. Cooke followed Abercrombie's Model Group Interview Guide. Cooke "knew that head wear and black items were prohibited by" the Look Policy, but she did not ask Elauf about headscarves in general or black ones in particular, since Abercrombie's standard "script" did not include such questions. Elauf also made no mention of her headscarf, and neither she nor Cooke mentioned religion. At the end of the interview, Cooke read the Interview Guide's description of the Look Policy, informed Elauf that employees had to "wear clothing that . . . looked like Abercrombie" and follow other dress and grooming guidelines. Elauf asked no questions, and did not volunteer that she wore the headscarf for religious reasons. Cooke contacted Randall Johnson, her district manager, to ask for permission to hire Elauf despite her headscarf. Cooke, who did not then know Elauf's religion, "assume[d]" she was Muslim and "figured" she wore her headscarf for religious reasons. According to Johnson, Cooke did not share her belief that Elauf wore the headscarf for religious reasons; he otherwise would have "roll[ed] [the issue] up to HR" in accordance with his training. Cooke testified, though, that she told Johnson she believed the headscarf was religious. Either way, both agreed that Johnson instructed Cooke not to hire Elauf. In Cooke's words, Johnson "told [her] not to hire [Elauf] because she had a head scarf." Johnson told Cooke that she could not hire Elauf because "she's not compliant with [the] dress code." Johnson further testified that he would have taken the same action with respect to any headwear, whether a headscarf, a yarmulke, a hat, a ball cap, or a helmet, because each conflicted with the Look Policy. Johnson made no disparaging remarks about Elauf, Islam, or the headscarf during the conversation or at any other time. Although Cooke still wished to hire Elauf, she followed Johnson's order and did not do so.

B. The EEOC Prevailed at Trial

The EEOC sued Abercrombie on Elauf's behalf, seeking money damages as well as injunctive relief. It did not claim that Abercrombie or its employees harbored animus toward Muslims nor that the Look Policy was a pretext for discrimination against Muslims. Rather, the EEOC contended that Abercrombie failed to accommodate Elauf's religious beliefs by making an exception to the Look Policy. The district court granted partial summary judgment on liability to the EEOC, denying Abercrombie's cross-motion. It applied the framework from Thomas v. National Association of Letter Carriers,² which requires the plaintiff to show, in an accommodation case, that she "had a bona fide religious belief that conflicts with an employment requirement," "informed the employer of this belief," and "was not hired for failing to comply with the employment requirement." Focusing primarily on the notice requirement, the court held the EEOC had made its prima facie case. In the district court's view, an employer has sufficient notice if it "has enough information to make it aware there exists a conflict between the individual's religious practice or belief and a requirement for applying for or performing the job." Because it was supposedly undisputed that "Cooke knew [Elauf] wore the head scarf based on her religious belief," the court found adequate notice here and imputed it to Abercrombie.

The court also rejected Abercrombie's undue hardship defense, which was based on the importance of its branding, because Abercrombie supported its defense with expert testimony but not statistical proof that exceptions to the Look Policy...