Much like your humble blogger, image is everything for teen retailer Abercrombie & Fitch. That may be problematic, however, as the U.S. Supreme Court recently agreed to hear an appeal addressing whether the Company’s enforcing its controversial employee dress code, or “look policy,” constituted religious discrimination.
In 2008, Samantha Elauf, a Muslim, applied for a job at an Abercrombie store in Tulsa, Oklahoma. She wore her hijab or headscarf during the interview. Abercrombie rates applicants on their sense of style (of course they do) and hiring manager, Heather Cooke, initially gave Elauf a score that recommended hiring her. However, after consulting with district manager Randall Johnson about the hijab, Cooke gave Elauf a low score in the “appearance and sense of style” category. (Johnson allegedly told Cooke that employees were not allowed to wear “hats” at work, and declined to hire her, even though Cooke told him that she assumed Elauf wore the scarf for religious reasons.) Cooke also told Johnson that she did not ask about religion during Elauf’s interview, in accordance with EEOC guidelines.
The EEOC subsequently filed suit against Abercrombie on Elauf’s behalf in 2009 and a jury awarded $20,000 in damages. Abercrombie appealed and the 10th Circuit ruled in their favor, holding that the Company couldn’t be held liable because Elauf never explicitly notified it that her religious practice conflicted with its policies.
The EEOC then petitioned the Supreme Court to review the case. The Court agreed to do so and to decide the issue of whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee. Oral argument is expected to take place in late winter/early spring 2015.