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U.S. Supreme Court Questions Abercrombie & Fitch’s “Look Policy”

By: Jennings, Strouss & Salmon, P.L.C.

On June 1, 2015, the Supreme Court of the United States (“SCOTUS”) issued its decision reversing the Tenth Circuit’s award of summary judgment in favor of Abercrombie & Fitch Stores, Inc. in the closely watched employment discrimination case.  Title VII of the Civil Rights Act of 1964 as amended (“Title VII”) provides for two types of religious discrimination in employment claims: (i) disparate treatment, also known as “intentional discrimination”; and (ii) disparate impact.  In the opinion written by Justice Scalia and joined by six other justices, the SCOTUS clarified the scope of a disparate treatment claim under Title VII, based on an employer’s failure to accommodate an applicant’s religious practice.  The SCOTUS determined that an employer may not make an applicant’s religious practice, known to the employer or otherwise, a factor in employment decisions.  The decision is a cautionary tale for employers who maintain dress code policies.

The Equal Employment Opportunity Commission (“EEOC”) sued Abercrombie on behalf of Samantha Elauf, a practicing Muslim, who applied for a position in an Abercrombie store and was denied the position because she wore a headscarf.  Abercrombie maintains a “Look Policy” for its employees with the intent of projecting a certain image in its stores.  The Look Policy prohibits employees from wearing “caps” (a term that is not defined by the policy) because they are too informal for the company’s preferred image.

The assistant manager who interviewed Elauf determined Elauf was qualified to be hired, but she was concerned that Elauf’s headscarf would violate the Look Policy.  Ultimately, Abercrombie’s district manager concluded that the headscarf and all other headwear (religious or otherwise) violated the policy, and he directed the assistant manager not to hire Elauf.

At issue before the SCOTUS was whether an applicant must have informed an employer of her need for a religious practice accommodation to establish a “disparate treatment” claim under Title VII.  The District Court entered summary judgment in favor of the EEOC, and the Tenth Circuit reversed.  The Tenth Circuit concluded that usually an employer cannot be held liable under Title VII for failing to accommodate a religious practice until the applicant or employee provides the employer with “actual knowledge” of her need for an accommodation.

The SCOTUS disagreed and emphasized that the employer’s motive behind its employment decision is the central issue, not its knowledge about the applicant’s need for an accommodation.  It stated, “an employer who acts with the motive of avoiding an accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”  The Court further clarified that Title VII does not demand “mere neutrality” with respect to religious practices, but instead it gives such practices “favored treatment”, which affirmatively obligates employers not to fail to hire or to discharge an individual because of her religious observance and practice.  The SCOTUS remanded the case back to the Tenth Circuit to consider, among other things, the issue of Abercrombie’s motive in not hiring Elauf.

The decision raises big questions about the enforcement of dress code policies.  Employers should review their employment policies and their enforcement of those policies to ensure they comply with Title VII.  Employers may also consider seeking the assistance of employment attorneys who can help navigate these complex issues.

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