A split 10th Circuit U.S. Court of Appeals panel on Oct. 1 reversed a trial court’s decision finding that a clothing retailer violated Title VII of the Civil Rights Act of 1964 when it refused to hire a female due to her head scarf (Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., et al., No. 11-5110, 10th Cir.; 2013 U.S. App. LEXIS 20028).
Abercrombie & Fitch Stores Inc. is a retail clothing company that operates stores across the United States under a variety of brand names, including Abercrombie & Fitch, abercrombie and Hollister. Abercrombie requires employees in its stores to comply with a “Look Policy.” Employees must dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores. Notably, the policy prohibits employees from wearing black clothing and “caps,” although the policy does not explicate the meaning of the term “cap.” An employee who doesn’t comply with the Look Policy may be subject to disciplinary action up to and including termination.
During the interviewing process for sales-floor employees (referred to by Abercrombie as “models”), Abercrombie managers assess applicants on appearance and style.
They are supposed to inform applicants of various aspects of the job, including the Look Policy. If a question arises during the interview regarding application of the Look Policy, or if a prospective employee requests a deviation from the policy, the store manager is instructed to contact Abercrombie’s corporate human resources department (HR) or his or her direct supervisor. HR managers may grant accommodations if doing so would not harm the brand.
Samantha Elauf applied for a model position at the Abercrombie Kids store in Tulsa, Okla., in mid-2008. She was 17 at the time and claims to be a practicing Muslim. Elauf had previously purchased and worn Abercrombie clothes.
Prior to her interview, Elauf discussed with a friend, Fasia Sepahvand, who worked at the same location, whether wearing a hijab, a head scarf, to work would be permissible. Elauf has worn a hijab since she was 13 and claimed that she did so for religious reasons.
Sepahvand took Elauf’s question to Assistant Manager Kalen McJilton. McJilton noted that he had previously worked with some who wore a white yarmulke and suggested that he didn’t see any problem with Elauf wearing a head scarf, especially if she didn’t wear one that was black. Abercrombie had a no-black-clothing policy.
Elauf then met with Assistant Manager Heather Cooke to interview for the model position. Cooke had observed Elauf while she was working elsewhere in the mall and had seen Elauf wearing a head scarf prior to the interview. She “did not know” Elauf’s religion, but “assumed that she was Muslim” and “figured that was the religious reason why she wore her head scarf.”
Questioning The Headscarf
During the interview, Elauf wore an Abercrombie-like t-shirt, jeans and a black head scarf. Elauf never informed Cooke that she was Muslim and never brought up the subject of her head scarf. Cooke scored Elauf in Abercrombie’s official interview guide. Elauf scored a six, which “meets expectations” and amounts to a recommendation that Abercrombie hire her. Although Cooke believed Elauf was a good candidate, she was unsure whether the headscarf would be an issue. Cooke’s direct supervisor was unable to answer her question about Elauf’s headscarf, so Cooke consulted with Randall Johnson, her district manager.
Johnson said Elauf should not be hired because the head scarf was not a clothing item consistent with the company’s Look Policy. Cooke claimed that she told Johnson that Elauf was Muslim. Johnson denied being told that by Cooke. At Johnson’s direction, Cooke threw away the original interview sheet and changed Elauf’s score. Elauf was not offered a job. A few days later, Elauf learned from Sepahvand that she had been denied a job because of her head scarf.
The Equal Employment Opportunity Commission sued Abercrombie in the U.S. District Court for the Northern District of Oklahoma on Sept. 17, 2009. The lawsuit, filed on behalf of Elauf, alleged violations of Title VII of the Civil Rights Act of 1964 on the grounds that Abercrombie “refused to hire Ms. Elauf because she wears a hijab” and “failed to accommodate her religious beliefs by making an exception to the Look Policy.” It sought injunctive relief, back pay and damages.
Abercrombie argued that Elauf failed to inform it of a conflict between the Look Policy and her religious practices. It further argued that the proposed accommodation – allowing Elauf to wear a head scarf – would have imposed an undue hardship on the company. Furthermore, it challenged Elauf’s assertion that she had a bona fide, sincerely held religious belief regarding wearing the head scarf.
The parties filed cross-motions for summary judgment on issues concerning liability. The District Court applied the burden-shifting framework established in McDonnell Douglas Corp. v. Green (411 U.S. 792 ). Under that framework, the court found that the EEOC established a prima facie case through evidence that Elauf wore her head scarf based on her a bona fide, sincerely held religious belief. Further, it reasoned that Abercrombie had notice that she wore it because of her religious belief and refused to hire her because of it. The parties went to trial on damages. The jury awarded the EEOC $ 20,000 in compensatory damages. The EEOC’s request for prospective injunctive relief was denied. Abercrombie appealed.
A split 10th Circuit panel reversed the District Court’s denial of summary judgment to Abercrombie and the grant of summary judgment to the EEOC. It remanded with instructions to vacate its judgment and enter judgment in favor of Abercrombie and for further proceedings consistent with this opinion.
“[W]e hold that, under the governing substantive law, Abercrombie is entitled to summary judgment because there is no genuine dispute of material fact regarding this key point: Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie’s clothing policy. Furthermore, it follows ineluctably from the logic and reasoning of our decision that, in granting partial summary judgment to the EEOC, the district court erred,” Judge Jerome A. Holmes wrote for the majority.
Judge Paul J. Kelly Jr. joined in the opinion.
Dissenting in part, Judge David M. Ebel opined that while he agreed that it was an error for the District Court to grant summary judgment to the EEOC, a jury should decide whether Abercrombie is liable for religious discrimination because the EEOC has established a prima facie failure-to-accommodate claim.
“I am not suggesting that the employer has a general duty, during a job interview to give the applicant a comprehensive ‘laundry list’ of all of the employer’s work policies in order to determine if those job requirements might possibly conflict with an applicant’s unstated religious beliefs or practices. I agree that the burden ordinarily remains with the job applicant to inform the employer of any conflict between the job’s requirements and her religious beliefs and practices, because it will usually be the applicant, and not the employer, who knows of such a conflict. However, I am also not suggesting, as the majority appears to be, that a job applicant must initiate a general discussion of her religious beliefs during the job interview just in case her religious beliefs and practices might conflict with some unstated policy or work rule of the employer. The EEOC has shown here that it was the employer, Abercrombie, which had superior knowledge of a possible conflict between its Look Policy and Elauf’s apparent religious practice of wearing a hijab. Under those facts, established after viewing the evidence in light most favorable to the EEOC, Abercrombie had a duty to initiate a dialogue with Elauf by informing her that Abercrombie’s Look Policy prohibited its sales models from wearing headwear and then inquiring whether she could comply with that policy, or whether Abercrombie could accommodate her belief in some reasonable way. Said another way, a jury could find Abercrombie liable under Title VII for assuming that Elauf was a Muslim who wore a hijab for religious reasons and that she would insist on wearing a hijab while working in one of Abercrombie’s stores, and then, without initiating a dialogue with Elauf to verify those assumptions, refused to hire Elauf based upon the company’s assumptions,” the judge wrote.
Mark A. Knueve, Daniel J. Clark and Joseph C. Fungsang of Vorys, Sater, Seymour & Pease in Columbus, Ohio, and Jon E. Brightmire of Doerner, Saunders, Daniel & Anderson in Tulsa, Okla., represent Abercrombie.
James M. Tucker, P. David Lopes, Carolyn L. Wheeler and Daniel T. Vail of the EEOC in Washington, D.C., represent the EEOC.