15 Jun Enforcing a “Look Policy”
On June 1, 2015, the U.S. Supreme Court decided EEOC v. Abercrombie & Fitch Stores, Inc., ruling that it was unlawful for Abercrombie to reject an otherwise qualified applicant because, as a practicing Muslim, she wore a headscarf.
Abercrombie enforced a “Look Policy” which prohibited employees from wearing “caps” among other things. The policy failed to define the term “caps.” It was Abercrombie’s policy that if a question arose about the Look Policy during an interview or an applicant requested a deviation, the interviewer was instructed to contact the corporate Human Resources department, which would determine whether or not an accommodation would be granted.
In 2008, Samantha Elauf, a practicing Muslim, applied for a position at an Abercrombie store. She wore a headscarf, or hijab, everyday, including the day of her interview. Elauf did not mention her headscarf during her interview and did not indicate that she would need an accommodation from the Look Policy. Her interviewer did not mention the headscarf, though she contacted her district manager, who told her to lower Elauf’s rating on the appearance section of the application, which lowered her overall score and prevented her from being hired.
The Equal Employment Opportunity Commission (EEOC) sued Abercrombie on Elauf’s behalf and claimed that the company had violated Title VII of the Civil Rights Act of 1964 by refusing to hire Elauf because of her headscarf. Abercrombie argued that Elauf had a duty to inform the interviewer that she required an accommodation from the Look Policy and that the headscarf was not the expression of a sincerely held religious belief. The district court granted summary judgment for the EEOC. The U.S. Court of Appeals for the Tenth Circuit reversed and held that summary judgment should have been granted in favor of Abercrombie because there is no genuine issue of fact that Elauf did not notify her interviewer that she had a conflict with the Look Policy.
The Court held that in order to hold an employer liable under Title VII of the Civil Rights Act of 1964, an applicant for a position must only show that her need for an accommodation was a motivating factor in the employer’s decision not to hire her. The disparate-treatment provision of Title VII does not contain a knowledge requirement, but forbids certain motives, regardless of the employer’s knowledge about the applicant. If the applicant can show that the employer’s decision not to hire an applicant was based on a desire to avoid having to accommodate a religious practice, then the employer has violated Title VII. The Court also held that Title VII does not demand mere neutrality; instead it creates an affirmative duty to accommodate religious practices.
Neutral policies often must yield to religious practices—unless the company can make a showing of undue hardship.
Maintaining an “image” or “look” is unlikely to constitute an undue hardship without exceptions for religious practices or other legally protected characteristics.