Rich Meneghello, The Daily Record Newswire
The Supreme Court recently decided a case that every employer will need to understand in order to stay on the right side of federal religious discrimination law. It ruled that retail clothing store Abercrombie & Fitch violated the law when it rejected an applicant who was wearing a Muslim hijab, saying she ran afoul of its appearance policies. Here are some lessons you can learn from that case to avoid the same fate.
Many people know Abercrombie as a stylish retail clothing company targeted mostly towards younger customers. What most don’t know is that Abercrombie requires all of its employees to comply with a strict “look” policy intended to exemplify its “classic East Coast collegiate style of clothing.” For example, sales-floor employees (whom Abercrombie refers to as “models”) are prohibited from wearing black clothing and caps. Abercrombie claims that the “look” policy is vital to its “preppy” and “casual” brand.
Samantha Elauf was 17 when she applied for a position as a “model” at an Abercrombie store in Tulsa, Oklahoma. She wore a black hijab to her interview as she did every day, unaware of the company’s Look Policy. During her interview, she didn’t inform Abercrombie that her hijab was worn for religious reasons or that she felt religiously obligated to wear it. As part of its hiring guidelines, Abercrombie evaluates prospective employees on three categories: appearance and sense of style, whether the applicant is outgoing and promotes diversity, and whether the applicant has sophistication and aspiration. Elauf originally scored well enough in each category to meet expectations, amounting to a recommendation for hire.
Nonetheless, on account of Elauf’s hijab, the interviewing assistant manager sought approval from her superiors. Her district manager — interpreting Abercrombie’s proscription against wearing “caps” as applicable to hijabs — stated that Abercrombie should not hire Elauf because her hijab was inconsistent with the “look" policy. Everyone agrees that the district manager didn’t know that Elauf’s hijab was worn for religious reasons, as the issue never came up during the interview. He told the assistant manager to reduce Elauf’s interview score in the “appearance and sense of style” section, resulting in Abercrombie not hiring Elauf.
The EEOC filed a Title VII religious discrimination claim against Abercrombie alleging that Abercrombie violated the law when it refused to hire Elauf because she wears a hijab, arguing that Abercrombie failed to accommodate her religious beliefs by making an exception to the company’s policy. The Supreme Court agreed, saying that an employer violates the law when it refuses to hire an applicant based on a “religious observance or practice,” regardless of whether it had direct, explicit notice that a religious accommodation was required. As long as the applicant shows that her need for an accommodation was a motivating factor in the employer’s decision, she will win her case.
So what should an employer do? In the wake of this decision, employers are faced with a seemingly tough decision. On the one hand, they can be held liable for discrimination without even knowing that they are discriminating. On the other hand, if they ask each applicant about their religion, that could lead to a separate discrimination claim. It seems like a Catch-22. But don’t worry too much; the solution is fairly simple. Here are some practical compliance tips:
Are appearance policies necessary?
Your first step is deciding whether you need to have an appearance policy at all. After all, in today’s more-casual society, you are likely to see tattooed police officers and accountants with nose piercings, so maybe your customers and business partners won’t be too surprised if they see your employee sporting a thick beard or handlebar mustache. Some employers are moving towards a very generic appearance policy that bars only extreme looks (facial tattoos, pink hair), or are scrapping the restrictions altogether.
If there is an appearance policy, tailor it carefully
If you end up retaining an appearance policy, make sure it is narrowly tailored to simply address the issues that you care about and that your clientele might care about. Perhaps most importantly, make sure to include some language in your written policy that informs your workers that your organization can accommodate their religious beliefs when it comes to the appearance policy. You should instruct them to approach management or your company’s human resources department with such requests.
What if a conflict develops?
Your applicants probably won’t be very familiar with your policies at the interview stage, so they might not know to request an accommodation. If you retain a “look” policy, you should present it to your applicants at the hiring stage and ask them whether they will be able to comply. If the applicant says yes, then you are good to go – simply document that interaction and consider the matter closed. But if the applicant says no, you should follow up with a basic question: “Why?” It might be that they have a moral objection to such restrictions, or they have non-religious tattoos that would run afoul of the policy, or they just don’t want to be shackled by “the man.” In any of these situations, feel free to reject the applicant without fear. But if they explain that they have a religious belief that runs counter to your policies, you now know that you will have to explore reasonable accommodations.
Train managers
Most importantly, you should train your front-line and hiring managers to understand your policies and how they interplay with religious accommodation obligations. After all, your policies are only as good as your practice. You might even want to role play different scenarios that could arise in the interview room or at the office so that they are familiar with the proper way to address such matters.
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Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.
