Religious attire at work: Abercrombie faces discrimination lawsuits

Employers must accommodate the religious practices of their employees in the workplace in order to protect them from possible discrimination, promote religious tolerance and comply with Title VII, as well as various state and local laws (for further details please see "Accommodating Muslim employees in the workplace").

Two recent lawsuits against the retailer Abercrombie & Fitch Stores Inc regarding the hijab – or headscarf – worn by many Muslim women illustrate these points, providing examples of the pitfalls that employers may encounter if they refuse to offer accommodations.

The Equal Employment Opportunity Commission (EEOC) recently prevailed in a lawsuit against Abercrombie in an Oklahoma federal court in which it claimed that the company had discriminated against an observant Muslim woman because she wore a hijab.(1) The complaint alleged that Abercrombie refused to hire Samantha Elauf, a teenager who applied for a position at a local Abercrombie Kids store, because her headscarf conflicted with the company's 'Look Policy'. The policy requires employees to dress and groom themselves in accordance with the image that Abercrombie wishes to project to its consumers. The court ruled that Abercrombie failed to show that it would have sustained significant undue hardship if it had made an accommodation for Elauf. A jury subsequently awarded Elauf $20,000 in compensatory damages but declined to grant punitive damages.

Quoting testimony of their expert witnesses, Abercrombie's attorneys had argued that "deviation from even a single element of the Look Policy 'can distort the desired brand effect and consumer perceptions', resulting in negative customer experiences, damages to the Abercrombie brand and a decline in sales". The EEOC argued that the undue hardship defence was based solely on speculation and conjecture, as Abercrombie had no proof that sales would suffer due to deviations from the policy. Indeed, it noted that Abercrombie had allowed females to wear headscarves in eight or nine instances since 2010 and had, in the past, allowed women to wear skirts or jewellery for religious reasons. Further, the EEOC asserted that Abercrombie had made other exceptions to the policy by allowing men to wear baseball caps or yarmulkes, or grow facial hair.

Just a few days before the adverse ruling in the Oklahoma case, the EEOC filed another federal lawsuit against Abercrombie alleging that it had fired a Muslim employee in California for wearing a hijab. The complaint stated that Hani Khan was fired from her job at a Hollister Co store (a clothing chain owned by Abercrombie) after refusing to remove her hijab at the request of two managers. Khan had allegedly been wearing the hijab since Hollister interviewed and hired her, four months before the alleged discriminatory actions, without incident. The EEOC argued that Abercrombie's refusal to honour Khan's request for a reasonable accommodation constituted religious discrimination.(2)

These recent cases demonstrate the EEOC's particular focus on discrimination against Muslim employees in a post-9/11 world. Employers should take note of these examples and consider the steps that they need to take to avoid discrimination against people of all faiths. Such steps include granting reasonable accommodations to observant employees regarding attire, prayer schedules and vacation time, where the accommodation would not cause undue hardship.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100), fax (+1 212 715 8000) or email ([email protected] or [email protected]).

Endnotes

(1) See EEOC v Abercrombie & Fitch Stores Inc, ____ F. Supp. 2d ____ (ND Okla July 13 2011).

(2) See EEOC and Umme-Hani Khan v Abercrombie & Fitch Stores, Inc d/b/a Hollister, Hollister Co California LLC, No 4:11-CV-03162-PJH (ND Cal June 27 2011).

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