Abercrombie Settles Hijab Discrimination Suits

Abercrombie & Fitch agreed on Sept. 23 to settle two employment discrimination suits with the U.S. Equal Employment Opportunity Commission based on the clothing retailer’s firing and refusing to hire workers who wore hijabs, or Muslim headscarves.


Hijabs in the Crossfire

In one case, a federal judge on Sept. 3 had found Abercrombie liable for religious discrimination for firing a Muslim teen, Umme-Hani Khan, from her stockroom position after she refused to remove her hijab, according to the EEOC.

The company had argued that the hijab violated its infamous “Look Policy” and harmed its brand. Khan had worn the hijab to her interview and had worked for Abercrombie’s Hollister store in San Mateo, Calif., for four months before being fired.

In the other case, a judge had found in April against Abercrombie on its motion for summary judgment to dismiss an EEOC lawsuit brought on behalf of Halla Banafa, who was asked about her hijab and religious beliefs during her interview for a job at an Abercrombie outlet store in Milpitas, Calif., and then not hired.

In Banafa’s case, Abercrombie, again citing its Look Policy, had argued that accommodating her religious headscarf-wearing would have resulted in an undue hardship on its business.

Under the settlement reached by the EEOC and Abercrombie, the company will pay Khan and Banafa $71,000. It also agreed to reform its hiring practices. Abercrombie promised to create an appeals process for when religious accommodations are denied, tell applicants that accommodations to its Look Policy may be available and incorporate hijab scenarios in its manager training.

That led to observations that Abercrombie will allow hijabs in the workplace in all cases, but a statement given by the company to CBS News seems to support only its obligation to consider accommodations: “With respect to hijabs, in particular, we determined three years ago to institute policy changes that would allow such headwear.”


Look, but Don’t Discriminate

The Look Policy itself appears to still be in place. “The Look Policy is not infirm in and of itself,” says Richard Cohen, an employment lawyer with Fox Rothschild LLP in New York. He says it seems to be neutral when it comes to religious beliefs – it’s not like it says, “No hijabs.”

Richard Cohen

Richard Cohen

And companies routinely hire and fire based on the way employees look – it’s perfectly legal, says Cohen, so long as such decisions don’t rely on race, religion, sex, pregnancy, age or, in some states or cities like New York, gender identity. 

“But [Abercrombie’s Look Policy] is attackable when it’s applied in a way that’s not facially neutral,” Cohen explains. “If it is applied to violate someone’s religious beliefs, then the employer has to try to come to some kind of reasonable accommodation.”

There are two basic elements of a religious discrimination case under Title VII of the Civil Rights Act of 1964: When a sincerely held religious belief is at issue, the employer must attempt to make a reasonable accommodation for it. But providing the accommodation can’t cause “undue hardship” to the employer; if it does, the employer doesn’t have to do it. 


Devotion to the Cause

Abercrombie seems devoted to its Look Policy. CEO Mike Jeffries has even gone on the record about how he doesn’t want fat people even wearing his company’s clothing. And other stories routinely crop up about the harshness of the Look Policy.

“This policy is important to them,” observes Cohen. “They don’t believe it discriminates or that it creates an undue hardship, and they seem ready to go down the line until it’s established that it violates discrimination laws.”

A third case out of Oklahoma is still in litigation: A federal judge ruled in July 2011 that Abercrombie religiously discriminated against a Muslim applicant for a sales position when it refused to hire her based on her hijab.

The U.S. 10th Circuit Court of Appeals reversed that decision on Oct. 1, holding that the EEOC had failed to show that the applicant, Samantha Elauf, had told Abercrombie about the conflict between her religious belief and the Look Policy or that she had requested an accommodation. But at least one observer says the EEOC is likely to appeal.

“As a matter of business judgment, most clients I think would reach a tipping point where it’s best to abandon this policy,” Cohen adds. Enough litigation could lead Abercrombie to give up, but then again, the company may be waiting for the right one – a better fact scenario or a more sympathetic trial judge – to take all the way to the top.

“They might take a case they don’t settle to the Supreme Court,” he says. “If it’s important enough, you litigate it.”

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