• The "Abercrombie Hijab" Case: Motive is Dispositive Factor in Determining Whether Religious Discrimination Occurred
  • June 26, 2015 | Authors: Tom Chauncey; Robert D. Haws; James W. Kaucher; Jennifer N. MacLennan; Susan Plimpton Segal
  • Law Firms: Gust Rosenfeld P.L.C. - Phoenix Office ; Gust Rosenfeld P.L.C. - Tucson Office ; Gust Rosenfeld P.L.C. - Phoenix Office
  • Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.

    In 2008, Samantha Elauf applied for a job at Abercrombie & Fitch, a retail clothing store known for a distinctive style of clothing. A practicing Muslim, Ms. Elauf wore a headscarf to the interview. The store had a "look policy," which prohibited employees from wearing headgear of any kind. The managers suspected Elauf was likely wearing the scarf for religious reasons, but determined the policy had no exceptions. They chose not to hire Elauf. The EEOC sued Abercrombie for violating Title VII, which forbids an employer from turning down an applicant because of a religious belief or practice it could accommodate without undue hardship.

    The U.S. Supreme Court ruled in favor of the EEOC in an 8-1 decision. According to the Court, Title VII does not contain a knowledge requirement. As a result, "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." In other words, an employer need not know with certainty that an employee needs an accommodation to be liable for violating Title VII, if the employer acts with the motive of avoiding accommodation. "An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."

    The Court remanded the matter to the trial court for further proceedings to determine whether the motive for Abercrombie's decision not to hire Ms. Elauf was based upon the fact that she was a Muslim.