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Does Abercrombie's "Look Policy" Constitute Religious Discrimination?

Schwartz Perry & Heller LLP
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.

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