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Headscarf-wearing applicant never informed Abercrombie that she needed religious accommodation; EEOC win reversed

By Ronald Miller, J.D.

A district court’s grant of summary judgment to the EEOC finding that Abercrombie & Fitch violated Title VII by failing to provide a reasonable religious accommodation to a Muslim woman’s wearing of a headscarf or “hijab” was reversed on appeal by the Tenth Circuit (EEOC v Abercrombie & Fitch Stores, Inc, October 1, 2013, Holmes, J). Abercrombie was entitled to summary judgment as a matter of law, ruled the appeals court, because there was no genuine issue of material fact that the prospective employee never informed the store prior to its hiring decision that she wore her “hijab” for religious reasons and that she needed an accommodation for that practice due to a conflict with Abercrombie’s clothing policy. Accordingly, case was remanded to district court with instructions to vacate judgment and enter judgment in favor of the employer.

Abercrombie requires employees in its stores to comply with a “Look Policy” intended to promote the Abercrombie brand. Employees must dress in clothing that is consistent with the clothing that Abercrombie sells in its stores. The policy prohibits employees from wearing black clothing and “caps,” although the policy does not explain the meaning of the term “cap.” Because Abercrombie claims that it does very little advertising through traditional media outlets, it contends that its Look Policy is critical to the health and vitality of its “preppy” and “casual” brand. Abercrombie asserts that a Model (a sales-floor employee) 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.”

Interview process. Of central concern in this case was the policy’s application to sales-floor employees. Here, the applicant applied for a model position with Abercrombie. Prior to her interview, the applicant asked a friend who worked at Abercrombie whether wearing a hijab to work was permissible. The friend queried an assistant store manager who suggested that he did not see a problem so long as the headscarf was not black. Thereafter, the applicant was interviewed for a model position by an assistant store manager who was familiar with her. She assumed that the applicant wore a headscarf for religious reasons, but did not ask whether she was Muslim.

The applicant knew that models were required to clothing similar to the type sold by Abercrombie, and during the interview she wore an Abercrombie T-shirt and jeans. She also wore a black hijab. During the interview, the assistant manager never mentioned the Look Policy by name but did describe the dress requirements. The applicant never informed the assistant manager that she was Muslim, never brought up the subject of the headscarf, never mentioned that she wore the headscarf for religious reasons, and never advised the assistant manager that she would need an accommodation to address the conflict between her religious practice and Abercrombie’s clothing policy.

Following the interview, the assistant manager sought approval from a senior manager in evaluating the applicant. A district manager determined that the applicant should not be hired because she wore a headscarf — a clothing item that was inconsistent with the Look Policy. The district manager denied being told that the applicant wore the headscarf for religious reasons.

The EEOC filed suit against Abercrombie alleging violations of Title VII on grounds that the employer “refused to hire the applicant because she wore a “hijab,” and failed to accommodate her religious beliefs by making an exception to the Look Policy. Ultimately, the district court granted summary judgment in favor of the EEOC. This appeal followed.

Governing law. The Tenth Circuit held that Abercrombie was entitled to summary judgment because there was no genuine dispute of material fact on a key point: the applicant never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and that she would need an accommodation because of the conflict with Abercrombie’s clothing policy.

To properly assess the applicant’s religion-accommodation claim, the Tenth Circuit examined the meaning of “religion” in the Title VII context. The term religion includes all aspects of religious observance and practice, as well as belief. Title VII’s implementing regulations “impose[] an obligation on the employer ‘to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business.’” However, the appeals court observed that it is only after an employer is put on notice of the need for a religious accommodation that it actively engage in a dialogue with applicants or employees concerning their conflicting religious practice and possible accommodations that the employer might provide for it.

Religion-accommodation cases apply a version of the McDonnell-Douglas burden-shifting approach. Here, the appeals court ruled that Abercrombie was entitled summary judgment because the EEOC cannot establish the second element of its prima facie case. In this instance, there was no dispute that the applicant never informed Abercrombie before its hiring decision that her practice of wearing a hijab was based on her religious beliefs and that she needed an accommodation. The appeals court determined that in order to establish a prima facie case under Title VII’s religion-accommodation theory, a plaintiff must establish that fact.

EEOC approach. The court rejected the EEOC’s less restrictive approach — that notice need not have been strictly in the form of the applicant verbally requesting such an accommodation. Under the EEOC’s approach, the employer would be obligated to attempt reasonable accommodation when it had notice — be it from an affirmative statement by the individual, or some other source — of an individual’s religious belief that conflicted with a work requirement.

However, the Tenth Circuit noted that its precedent placed the burden on the applicant or employee initially to inform the employer of the religious nature of his or her conflicting practice and need for an accommodation. Moreover, the record offered no support for the district court’s determination that the interviewing assistant manager knew that the applicant wore the head scarf based on her religious belief. While some courts have taken a different path on this question, the appeals panel expressed confidence that its approach was the sounder one.

Partial concurrence, partial dissent. Judge Ebel agreed with the majority opinion’s ruling that the district court erred in granting summary judgment to the EEOC. However, he dissented from the majority’s grant of summary judgment to Abercrombie, arguing that a jury should decide whether the employer is liable for religious discrimination. Judge Ebel would remand for a jury trial because there were factual disputes as to whether the circumstances triggered Abercrombie’s duty to initiate an interactive dialogue with the applicant in order to determine whether she had a religious practice that conflicted with the Look Policy.