Does an employer's policy regarding how their employees dress constitute
discrimination? Abercrombie & Fitch has previously run into trouble
for its controversial employee dress code, which requires workers to emulate
a "classic East Coast collegiate style". Now they are before
the U.S. Supreme Court.
In 2005, litigation by the Equal Employment Opportunity Commission (EEOC)
resulted in a six-year consent decree and $40 million being paid to a
plaintiff class of African Americans, Asian Americans, Latinos and women
who were excluded from hiring or promotions.
In the latest case, the EEOC alleged that Abercrombie failed to hire applicant
Samantha Elauf because she wore a headscarf to her interview. The clothing
store countered that it cannot be held liable for discrimination because
Elauf never mentioned that she wore it for religious reasons.
As a rule, it is legal for an employer to establish a dress code and appearance
policies, as long as they are in writing and applied uniformly without
reference to gender, race, ethnicity, and religious beliefs, and providing
they are not discriminatory, either intentionally or not.
If an employer's neutral policy adversely impacts any particular group
in a discriminatory fashion, the policy may be unlawful. Title VII of the
Civil Rights Act of 1964 prohibits discrimination based on religion, and requires employers to
accommodate the sincere religious beliefs or practices of employees unless
doing so would impose an undue hardship on the business
The Tenth Circuit Court of Appeals rejected the EEOC's argument that
it was unnecessary for Elauf to inform Abercrombie that she requesting
a religious accommodation to wear the headscarf. It held that "ordinarily
plaintiffs must establish that they initially informed the employer that
they engage in a particular practice for religious reasons and that they
need an accommodation for the practice due to a conflict between the practice
and the employer's work rules."
The EEOC appealed the decision to the U.S. Supreme Court. The issue to
be decided is whether an employer can be liable for refusing to hire an
applicant or for discharging an employee based on "religious observance
or practice" if the employer had no actual knowledge that a religious
accommodation was required and was not given a direct, explicit notice
from the applicant or employee.
This will be an interesting decision that will directly affect workplace
religious discrimination. Stay tuned.