Abercrombie has had several cases in the news because its’ “Look Policy” has been in conflict with Muslim women who wear hijabs.

Samantha Elauf was one such woman. Ms. Elauf applied for a job at Abercrombie. She came to her interview wearing her hijab because her Muslim religion required it. Two managerial employees interviewed Ms. Elauf for the job and they did not ask her any questions about why she wore the hijab. They therefore had no specific information as to whether she wore the hijab for religious reasons. She was not hired because of the headscarf.

The Tenth Circuit Court of Appeals decided that the specific lack of knowledge by Abercrombie as to why she wore the headscarf made the case untenable. It was incumbent on Ms. Elauf to establish that she informed Abercrombie both that she wore the hijab for religious reasons and that it must accommodate her religious expression. The Court reasoned that Abercrombie could not know whether her choice to wear it was cultural as opposed to religious. The employer must have direct knowledge of the religious practice. Employers are limited from asking such questions of the employees so the employees must affirmatively advise them.