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Abercrombie & Fitch Battles Latest Hijab Discrimination Case in Supreme Court

Samantha Elauf was denied a job at the retail giant for wearing a headscarf, which allegedly violated the company's “look policy.”

by Liz Fields
Feb 25 2015, 10:55pm

Photo by Pablo Martinez Monsivais/AP

Abercrombie & Fitch, the embattled purveyor of preppy teen wear, is fighting out its latest hijab-related controversy in the Supreme Court, where the clothing giant is currently facing a religious bias case for alleged discrimination against a potential hire who wore a traditional Muslim headscarf to an interview.

The case has dragged on since 2008, when Samantha Elauf, then 17, allegedly resisted the store's infamous "look policy" — which dictates staff guidelines on clothing accessories, and even makeup — by wearing a black headscarf to her interview in a Tulsa, Oklahoma branch of the kids store.

"I learned I was not hired by Abercrombie because I wear a head scarf, which is a symbol of modesty in my Muslim faith," Elauf said after oral arguments had been presented to the court Wednesday.

Abercrombie claims in a court brief that Elauf's scarf infringed on company policy because the company explicitly forbids its "models" — as sales staff are called — from wearing the color black or from sporting headwear in store, which is why she was not offered the job.

The US Equal Employment Opportunity Commission (EEOC), which brought the suit on Elauf's behalf, claims Abercrombie violated Title VII of the Civil Rights Act of 1964, specifically aimed at stopping companies from refusing to employ someone based on race, color, sex, national origin, and religion.

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The company insists it didn't know Elauf was wearing the scarf for religious reasons, because she never filed "direct, explicit notice" ahead of the interview that her hijab would conflict with store policy.

It also said that staff are told not to ask applicants about their religion — a policy that followed by the 23-year-old assistant manager who interviewed the teen at the time, but has since left the store "on bad terms" according to the company. The assistant manager had consulted a district manager, Randall Johnson, about Elauf's application at the time, and Johnson, who has since been fired, ultimately denied Elauf the role.

"Ms Elauf had been cautioned not to wear black clothing to the interview but nonetheless wore a black headscarf even though she held no religious belief that required her to wear black," Abercrombie's brief reads."[A]n applicant or employee cannot remain silent before the employer regarding the religious nature of his or her conflicting practice and need for an accommodation and still hope to prevail in a religion-accommodation case."

The EEOC argues that it's unreasonable for Abercrombie to burden potential employees with the responsibility of filing a notice of need for a religious accommodation request, particularly when the company didn't make it clear she needed one for its no-head coverings policy.

The case first saw light in a federal court in Oklahoma, where a judge sided with Elauf in 2011, and then went through the 10th US circuit court of appeals where that decision was reversed in October 2013. It is now on the desk of the Supreme Court justices, who are expected to make a final ruling in June.

During the Oklahoma district court proceedings in 2011, it was established that candidates did not have to comply with Abercombie's Look Policy in interviews.

Lawyers for the plaintiff argued that Johnson, "knew, having seen women on TV wearing headscarves… that the headscarf signified that she was Muslim."

Abercombie's lawyer in that case told the court that "Grace Kelly was always pictured with a headscarf. The simple fact that somebody wore a headscarf doesn't mean that they're Muslim."

To which the court replied, "it would be a simple matter of telling Grace Kelly she can't wear the scarf while she's working there. And certainly, you would have been happy to have had Grace Kelly working for you."

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The case has pitted some big names in the business community and public sector, who are backing the retailer, against 16 religious organizations — including the American Jewish Committee and the Council on American-Islamic Relations — behind Elouf.

"The prohibition against religious discrimination reflects this country's historical tradition of religious freedom and religious tolerance," EEOC General Counsel, P. David Lopez, said in a statement Wednesday. "Today's case is the latest effort to ensure all persons protected by Title VII are not placed in the difficult position of choosing between adherence to one's faith and a job."

Meanwhile, the US Chamber of Commerce, Equal Employment Advisory Council, the National Federation of Independent Business and National Conference of State Legislatures, National League of Cities, and US Conference of Mayors are among a league of organizations that have filed briefs in support of Abercrombie, fearing the repercussions the case might have on businesses and hiring practices.

Abercrombie has come under fire before for its restrictive look policy, which even controls rules on acceptable employee hair color and nail length. The retailer was previously forced to pay out $71,000 to two other Muslim women who filed discrimination cases against it in September 2013. The company later changed its policy after the settlement to allow employees to wear hijabs at work.

Yet the clothing chain, based in Columbus, Ohio, maintains the policy is necessary to "ensure that its target customers receive a holistically brand-based, sensory experience."

"To Abercrombie, a model who violates the Look Policy by wearing inconsistent clothing 'inaccurately represents the brand, causes consumer confusion, fails to perform an essential function of the position, and ultimately damages the brand," it said in its brief.

The retailer has faced numerous setbacks in recent years, including a reported loss in profits amid plunging sales and fizzling efforts to keep the brand hip to the youth market. Abercrombie's former CEO, Michael Jeffries, who stepped down in December, also drew ire after he told Salon Magazine the company only catered to "cool, good-looking people" and avoided "fat people" in 2006.

"Candidly, we go after the cool kids," Jeffries said. "A lot of people don't belong [in our clothes], and they can't belong. Are we exclusionary? Absolutely."

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Follow Liz Fields on Twitter: @lianzifields