The US Supreme Court will hear a dispute Wednesday over Abercrombie & Fitch’s decision not to hire a 17-year-old Muslim girl who wore a headscarf that would have violated the store’s notorious “Look Policy.”
America’s employers are closely watching the case, which will determine whether Abercrombie discriminated against the then-teenager, as the Wall Street Journal noted Sunday.
This is a complicated case because federal law requires employers to “reasonably accommodate” workers’ religions or disabilities, while state law typically forbids companies from asking job applicants about religion or disability, according to the Journal.
“The employer is kind of between a rock and a hard place on this,” Michael Delikat, who heads the New York employment-law practice at Orrick Herrington & Sutcliffe, told the Journal.
The justices agreed to hear Samantha Elauf’s case back in October, and in December “friend of the court” briefs supporting her case flooded in from the ACLU, several states, and the American Jewish Committee, as well as gay rights and religious liberty groups.
The main issue here is whether Abercrombie violated a federal law that says companies can’t refuse to hire people simply because of how they practice their religion — unless employers can show they’re simply not able to accommodate those practices.
Elauf, who’s now a fashion blogger in her 20s, applied for a job as an Abercrombie model in Tulsa, Oklahoma, back when she was 17, according to a legal document filed by the Equal Employment Opportunity Commission (EEOC), which brought the case on her behalf.
At Abercrombie, “models” are sales associates who are expected to model the store’s style in compliance with its “Look Policy.”
An Abercrombie assistant manager considered Elauf a “good candidate” but wasn’t sure whether her headscarf violated Abercrombie’s so-called look policy, according to the EEOC brief. That assistant manager consulted a manager, explaining that she thought Elauf wore the scarf for religious reasons. The manager said the headscarf wasn’t permitted, even if Elauf wore it because she was a Muslim, according to the EEOC.
Elauf didn’t get the job, and the EEOC brought its case against the preppy retail giant.
Abercrombie says it didn’t violate that law because it never got “direct, explicit notice” from Elauf that her religious practice conflicted with Abercrombie’s look policy.
“[A]n applicant or employee cannot remain silent before the employer regarding the religious nature of his or her conflicting practice and need for an accommodation and still hope to prevail in a religion-accommodation case,” Abercrombie noted in a brief it filed in the case.
Since this EEOC case was filed, Abercrombie has changed its look policy to allow headscarves. But it is still very invested in how its models look.
“Abercrombie expends a great deal of effort to ensure that its target customers receive a holistically brand-based, sensory experience,” Abercrombie’s brief stated. “To Abercrombie, a Model who violates the Look Policy by wearing inconsistent clothing ‘inaccurately represents the brand, causes consumer confusion, fails to perform an essential function of the position, and ultimately damages the brand.
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