In our December 2010 Employment Law Update, we offered guidelines for accommodating the religious practices of Muslim employees and protecting them from possible discrimination. We noted the importance of offering reasonable accommodations for observant Muslims in the workplace in order to promote religious tolerance and comply with Title VII as well as various state and local laws. Two recent lawsuits against the retailer Abercrombie & Fitch Stores Inc. (“Abercrombie”) regarding the hijab, or headscarf, worn by many Muslim women illustrate these points, providing examples of the pitfalls employers may encounter if they refuse to offer accommodations.

The EEOC recently prevailed in a lawsuit against Abercrombie in Oklahoma federal court in which it claimed the company had discriminated against an observant Muslim woman because she wore a hijab. See EEOC v. Abercrombie & Fitch Stores Inc., ____ F. Supp. 2d ____ (N.D. Okla. July 13, 2011). The complaint alleged that Abercrombie refused to hire Samantha Elauf, a teenager who applied for a position at a local Abercrombie Kids store, because her head scarf conflicted with the company’s “Look Policy.” The Look Policy requires employees to dress and groom themselves in accordance with the image Abercrombie wants to project to its consumers. The court ruled that Abercrombie failed to show it would have sustained significant undue hardship if it had made an accommodation for Elauf. A jury subsequently awarded Elauf $20,000 in compensatory damages but declined to grant punitive damages.  

The EEOC recently prevailed in a lawsuit against Abercrombie in Oklahoma federal court in which it claimed the company had discriminated against an observant Muslim woman because she wore a hijab.

Quoting testimony of their expert witnesses, Abercrombie’s attorneys had argued that “Deviation from even a single element of the Look Policy ‘can distort the desired brand effect and consumer perceptions,’ resulting in negative customer experiences, damages to the Abercrombie brand and a decline in sales.” The EEOC argued that the undue hardship defense was based solely upon speculation and conjecture, as Abercrombie had no proof that sales would suffer due to deviations from the Look Policy. Indeed, it noted that Abercrombie had allowed females to wear head scarves in eight or nine instances since 2010 and had in the past allowed women to wear skirts or jewelry for religious reasons. Further, the EEOC asserted that Abercrombie had made other exceptions to the Look Policy by allowing men to wear baseball caps or yarmulkes or grow facial hair.  

Just a few days before the adverse ruling in the Oklahoma case, the EEOC filed another federal lawsuit against Abercrombie alleging that it fired a Muslim employee in California for wearing a hijab. The complaint states that Hani Khan was fired from her job at a Hollister Co. store (a clothing chain owned by Abercrombie) after refusing to remove her hijab at the request of two managers. Khan had allegedly been wearing the hijab since Hollister interviewed and hired her, four months prior to the alleged discriminatory actions, without incident. The EEOC argues that Abercrombie’s refusal to honor Khan’s request for a reasonable accommodation constituted religious discrimination. See EEOC and Umme-Hani Khan v. Abercrombie & Fitch Stores, Inc. d/b/a Hollister, Hollister Co. California, LLC, No. 4:11-CV-03162-PJH (N.D. Cal. June 27, 2011).

These recent cases demonstrate the EEOC’s particular focus on discrimination against Muslim employees in a post-9/11 world. Yet employers should take note of these examples and consider the steps that should be taken to avoid discrimination against people of all faiths. Such steps include granting reasonable accommodations to observant employees regarding attire, prayer schedules, and vacation time, to name a few, where the accommodation would not cause undue hardship.