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EEOC v Abercrombie & Fitch

EEOC v Abercrombie & Fitch

The Equal Employment Opportunity Commission (EEOC) won a significant victory in a hiring case that involved Abercrombie & Fitch’s refusal to hire an applicant whose headscarf (hijab), worn for religious reasons, violated the company’s dress code policy. 

The U.S. Supreme Court held that an employer may not refuse to hire an applicant if the need for a religious accommodation is a motivating factor in the employer’s decision, unless accommodation would pose an undue hardship. 

Abercrombie & Fitch argued that it should NOT be held responsible for providing accommodation since the applicant did not explicitly inform themof her need for an accommodation.  This relates to what we tell people in “SHADES of Harassment” training – if you “knew” or “should have known”, you should act. 


Anyone with authority to hire or fire should be trained on religious discrimination, and in California, on the religious attire discrimination specifics.

Job Denied

The case arose when Samantha Elauf, teenager who wore a hijab as part of her Muslim faith, applied for a job at Abercrombie & Fitch in Tulsa, Okla. 

The store’s assistant manager, interviewed Elaufand gave her a rating that qualified her to be hired. The assistant manager was concerned that Elauf’s headscarf might conflict with the Abercrombie’s dress code. She sought guidance from the store manager to clarify whether the hijab would be considered a forbidden “cap,” by Abercrombie’s dress code. 

When the assistant manager received no answer from the store manager, she turned to the district manager, who told her that the hijab would violate Abercrombie’s dress code, religious or not.  He then directed the assistant manager not to hire Elauf.

The EEOC sued on Elauf’s behalf, claiming that Abercrombie’s refusal to hire her violated Title VII of the Civil Rights Act of 1964.  The District Court ruled for Elauf, but the 10th Circuit Appeals Court ruled in Abercrombie’s favor.

Supreme Court Opinion

The Supreme Court reversed the Appeals Court’s decision. In explaining why actual knowledge of the need for accommodation isn’t required for there to be a viable religious accommodation claim, the Supreme Court said that “motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant, if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

The Supreme Court further elaboratedAn employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an Orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays,”

If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

“I was a teenager who loved fashion and was eager to work for Abercrombie & Fitch,” Elaufsaid. “Observance of my faith should not have prevented me from getting a job. I am glad that I stood up for my rights, and happy that the EEOC was there for me and took my complaint to the courts.”

Importance of Training

The Parallax Education training has included religious discrimination issues and religious dress accommodations for over 10 years.

The similarities to other “protected classes” allow some learning opportunities.    We have always held that if an applicant has a VISIBLE physical challenge, the employer should ask if the employee can perform the essential functions of the job, “with or without accommodations”.   Not hiring, or refusing to accommodate an employee in a wheelchair deals with the same issues as EEOC vs. Abercrombie.   The employee need not request an accommodation if the need is apparent, and the employers MOTIVE for failing to hire, should be oriented to the applicants failure to be able to perform the essential functions of the job, NOT simply because the accommodation would be bothersome. 

This case reinforces the need for training of management, supervisors, and leads at the lowest level.  In addition, anyone in a recruiting position should receive this training.  

Religious discrimination claims that we have seen fall into three categories:

• Dress codes.
• Grooming standards, such as prohibitions on wearing a beard or having a visible tattoo.
• Scheduling.  This includes a case in which we were involved where the employee was hired as an agnostic, therefore ABLE to work weekends, then after several years converted to Orthodox Judaism and was therefore NOT able to work weekends.   

HR should ask supervisors and leads to inform the human resources department if a job applicant or employee requests an accommodation, if the need for an accommodation is apparent, or if a hiring decision hinges on an expected request for accommodation.

The “SHADES of Harassment” training covers pregnancy and pregnancy disability accommodations, religious accommodations and disability (ADA) accommodations.