Abercrombie & Fitch and Title VII of the Civil Rights act of 1964; what it means for employers now

June 12, 2015

The United States Supreme Court decided on June 1, 2015 that clothing retailer Abercrombie & Fitch had violated Title VII of the Civil Rights act of 1964 when it refused to hire Samantha Elauf based solely on an unsubstantiated belief that she would refuse to remove a headscarf she wore to the interview to comply with Abercrombie’s dress code. Ms. Elauf is a practicing Muslim, and the company correctly guessed that she wore a headscarf in accordance with her Muslim religion. Because it based its hiring decision on a practice associated with religion, the Court said that Abercrombie violated the law. This significant opinion by the Court shows, again, that employers simply cannot make hiring or other employment decisions motivated by race, color, religion, sex, or national origin.

Abercrombie’s position was that they had no actual knowledge, one way or the other, of Ms. Elauf’s religion, and so they could not be held to have made any hiring decision “because of. . . religion.” The topic of religion never came up. Ms. Elauf scored well enough to be hired, but the hiring manager did not know whether the headscarf would violate the company’s no-“caps” dress code policy. The hiring manager assumed, correctly, that Ms. Elauf wore the headscarf in accordance with her understanding of her Muslim faith.   That assumption was enough, said the Court, to improperly motivate the decision to not hire Ms. Elauf, in violation of Title VII.

The decision makes explicit that Title VII provides extra protections to these protected classes. “Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual’s religious observance and practice.’” So, it was not enough for Abercrombie to say that no employee is permitted to wear a “cap,” be it a Muslim headscarf, a Jewish Yarmulke, or a Boston Red Sox ball cap (to signify allegiance to the most significant faith in New England). Federal law says that employers must make exceptions to their otherwise neutrally-applied rules.

There are limits. Employers can still have dress codes, but they bear the burden to show that they could not reasonably accommodate the religious practice without an “undue hardship” on the employer’s business. Theoretically, Abercrombie could still make the case that a headscarf is so far outside their required “look” that it would hurt business. This might be a stretch for Abercrombie, even considering its reputation for closely adhering to its appearance standards. But, other employer’s might have an easier time. Hooter’s will likely be able to avoid accommodating a woman who, because of her faith, wants to wear a hijab at work. Like them or not, Hooter’s makes money because it has scantily clad women serving its customers.

What should the company have done? Consider this thought experiment. Assume the candidate is a great candidate for employment, but she wore a headscarf to the interview. The manager could state that the company has a no-“caps” policy, and ask whether the applicant is willing to comply with the policy. If the answer is “yes,” problem solved. The applicant has not requested an accommodation to their policy, their policy is followed, so they have no problem. If the answer is “no,” does the company have any obligation to inquire further as to the applicant’s reasons? Probably, if the company believes that the applicant refuses due to a religious practice or belief. If the applicant tells the interviewer that their refusal is simply because they prefer to be covered, then the employer’s obligation to accommodate is eliminated. They would not be obligated to hire. If the reasons for refusing are religious, then the burden is on the company again to determine whether they can make an accommodation to their no-“caps” policy. Of course, the prudent company will establish bona fide occupational qualifications for its employment positions.

So does this open the flood-gates? Probably not, but it means that employers cannot just ignore the hijab in the room