Abercrombie & Fitch to Face Supreme Court Over Hijab Controversy

The brand behind the loud music and overpowering smell of cologne plaguing your local mall will be taking its act all the way to the Supreme Court over accusations of religious discrimination and its controversial "look policy."

For its session starting in December, the Supreme Court has decided to take up a case brought by the Equal Employment Opportunity Commission (EEOC) against Abercrombie & Fitch in which the teen apparel retailer is accused of not hiring a woman because she was wearing a religious headscarf.

The saga began in 2008 at an Abercrombie Kids store located in Tulsa, Oklahoma when then 17-year-old Samantha Elauf wore a black headscarf during her interview for a position as a "model" — essentially the brand's equivalent to a sales clerk. Hiring manager Heather Cooke, who was 23 at the time, gave Elauf a high enough score to merit a recommendation to be hired.

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But after the hiring manager spoke with a higher up and discussed the scarf, Cooke was informed by her superior that employees could not wear scarves, as company guidelines do not allow hats to be worn. Elauf was subsequently given a low score for "appearance and sense of style," and she did not get the job.

The basis for the manager's decision falls under the company's "look policy," which requires employees to "maintain a consistent level of dress and grooming that represents what people expect from [the brand]." The guidelines stipulate the need for clean and presentable fingernails, a classic hairstyle, and makeup that creates a fresh and natural appearance. The policy even outlines requirements for toenail polish, facial hair, and tattoos.

As a result of other lawsuits in recent years, Abercrombie has been forced to allow religious exemptions to their look policy — guidelines that employment lawyer Richard Cohen told VICE News are not breaking the law at face value.

"[Abercrombie's] look policy says you have to have a preppy look, that's not discriminating towards anyone on its face," Cohen said, explaining that application of the policy is where problems can arise. According to Cohen, however, the policy does discriminate if it is applied to someone who has to wear a hijab or a cross around your neck. This is when the religious exemption should come into play.

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While Cooke said she assumed the scarf was worn for religious purposes, all sides agree that Elauf never explicitly discussed this in the interview process, nor did she request a religious exemption.

This lack of notification was the basis for an April decision in the 10th US Circuit Court of Appeals that determined the "look policy" and ability for Abercrombie to maintain its carefully defined image was imperative to the brand's health. Furthermore, the judge's decision fell along the lines that she did not disclose her desire for religious exemption. This reversed a lower court's 2011 decision siding with Elauf.

"Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie's clothing policy," the decision reads.

This decision was along the same lines as arguments made by Abercrombie, which is based in Columbus, Ohio. Attorneys for the retailer said, "It is undisputed that Samantha Elauf did not inform Abercrombie that her religious beliefs required her to wear a headscarf when she was at work. It is axiomatic that an employer must have actual notice that an applicant's mandatory religious practices conflict with an employment requirement."

For its part, however, EEOC argued that, "By holding that an employer may discriminate against a job applicant or employee based on practices that the employer correctly believes to be religious, so long as the employer does not have 'actual knowledge' of the need for religious accommodation … opened a safe harbor for religious discrimination."

According to Cohen, if the Supreme Court were to make a narrow ruling in the case, they would deal with the issue of notice — whether by simply wearing the head scarf it should have been assumed Elauf would required religious exemption. Or they could decide to simply affirm the lower court's ruling that she did not notify the company of her religious mandate. In that case, the ruling would only cover this specific issue of disclosure, not the broader issue of the policy itself — perhaps counterintuitive, Cohen said this narrow decision would not benefit Abercrombie all that much.

"They win the case if that's the argument," he explained, but in that case there would be neither a change or affirmation for the policy itself.

Cohen said that if he were representing the company, he would pursue a broader ruling on religious exemption for the policy itself. The reasoning is that if the court ruled in the companies favor, it would halt future challenges. Conversely, if the court sides with the plaintiffs, the application of the look policy would be defined.

Cohen said it is difficult to know why the Supreme Court took the case or what aspect they are interested in ruling on, but if they do in fact look at the broader issue of religious exemption, Abercrombie will have to prove the possibility of undue hardship. Essentially, Abercrombie would have show that bending it's "look policy" to accommodate for people's appearance in the case of a religious exemption would be detrimental to the carefully defined brand the company has created.

"Religion doesn't trump everything, it has to not create undue hardship," Cohen said. But if the decision does turn on this issue and finds the look policy creates undue hardship it will create more problems than it will cause. "It will be an expansively large ruling and will open the floodgates of employers claiming undue hardship."

Follow Kayla Ruble on Twitter: @RubleKB

Photo via Flickr