Gary S. Young
November 3, 2014
Abercrombie & Fitch’s controversial “Look [Dress] Policy” has finally ended up before the U.S. Supreme Court.
The justices recently agreed to consider a suit over whether the clothing retailer is liable for employment discrimination when a Muslim job applicant failed to expressly request a religious accommodation to wear a headscarf when applying for employment.
As we have previously discussed on this blog, Abercrombie has faced numerous religious discrimination lawsuits in recent years over its employee dress code, which requires workers to emulate a “classic East Coast collegiate style.” In 2005, litigation by the Equal Employment Opportunity Commission (EEOC) resulted in a six-year consent decree and $40 million being paid to a plaintiff class of African Americans, Asian Americans, Latinos and women who were excluded from hiring or promotions.
Generally speaking, employers are entitled to establish dress code and appearance policies. To be enforceable, however, such policies should be in writing and applied uniformly regardless of gender, race, ethnicity, and religious beliefs. Even then, such policies must not be discriminatory, whether intentionally or by effect.
If an employer’s neutral policy adversely impacts any particular group in a discriminatory fashion, the policy may be unlawful. Title VII of the Civil Rights Act of 1964
prohibits discrimination based on religion, and requires employers to accommodate the sincere religious beliefs or practices of employees unless doing so would impose an undue hardship on the business
In the latest case, the EEOC alleged that Abercrombie failed to hire applicant Samantha Elauf because she wore a headscarf to her interview. The defendant clothing store countered that it cannot be held liable for discrimination because Elauf never mentioned that she wore it for religious reasons.
The Tenth Circuit Court of Appeals rejected the EEOC’s argument that it was unnecessary for Elauf to inform Abercrombie that she requesting a religious accommodation to wear the headscarf. It held that “ordinarily plaintiffs must establish that they initially informed the employer that they engage in a particular practice for religious reasons and that they need an accommodation for the practice due to a conflict between the practice and the employer ’s work rules.”
Thus, the specific question before the U.S. Supreme Court is:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.
Abercrombie has since changed its “Look Policy.” Dress codes continue to pose legal issues for New York and New Jersey employers. We will be closely monitoring the status of this case and will provide updates as they become available.
If you have questions about worker misclassification or would like to discuss your company’s employee policies, please contact me or the Scarinci Hollenbeck Labor and Employment attorney with whom you work.