A federal appellate court ruled for Abercrombie & Fitch against the U.S. Equal Employment Opportunity Commission in the case of a prospective Muslim employee who claimed the retailer passed her over for a job because she wore a headscarf for religious reasons.
Barely a week after the retailer settled similar claims in California, the U.S. Court of Appeals for the Tenth Circuit vacated an Oklahoma federal trial judge summary judgment in the commission’s favor and a jury award of $20,000 in compensatory damages to Samantha Elauf. The court also granted summary judgment to Abercrombie.
Judge Jerome A. Holmes wrote Tuesday’s opinion in EEOC Abercrombie & Fitch Stores Inc., joined by Judge Paul J. Kelly Jr.
“[B]ecause Ms. Elauf did not inform Abercrombie prior to its hiring decision that she engaged in the conflicting practice of wearing a hijab for religious reasons and that she needed an accommodation for it, the [commission] cannot establish its prima facie case,” Holmes wrote.
He cited precedents from the Third, Fourth, Seventh and Eighth Circuit requiring an applicant or employee to inform a company of a religious practice that might conflict with company policy that might require an accommodation.
Senior Judge David M. Ebel’s wrote separately, agreeing that Northern District of Oklahoma Chief Judge Gregory Frizzell’s ruling for the commission was erroneous but arguing that a jury should decide whether Abercrombie discriminated against Elauf. He cited Eighth, Ninth and Eleventh Circuit case law.
“To my mind, once the employer knows of, or should know of, a conflict, or the likelihood of a conflict, the employer is then obligated to interact with the job applicant about the likely conflict in order to determine if there is a reasonable accommodation for the job applicant’s religious practices,” Ebel wrote.
In 2008, Elauf, then 17, applied for a so-called “model” or sales associate position at the Abercrombie Kids store in Tulsa, Okla. Elauf wore a black hijab, or headscarf, but did not inform her interviewer, an assistant manager, that she was Muslim, according to court records. The assistant manager figured that Elauf wore the hijab for religious reasons but didn’t ask.
The assistant manager thought Elauf was a good candidate, but decided to consult a district manager about the headscarf. The assistant manager testified that she took her superior’s advice not to hire Elauf because the hijab was inconsistent with Abercrombie’s “Look Policy” or dress code.
On September 23, Abercrombie, the EEOC and two advocacy groups announced settlements involving two similar disputes over headscarfs in California. Abercrombie agreed to change its dress code to allow religious attire.
Abercrombie’s lawyers at Vorys, Sater, Seymour and Pease of Columbus, Ohio, referred questions to the company. Doerner, Saunders, Daniel & Anderson of Tulsa also represented Abercrombie.
In an email, Abercrombie said the company grants reasonable religious accommodations when requested, including requests involving hijabs. No request was ever made in this case, according to the company. “We are happy that all of the hijab cases have now been resolved and that these very old matters are behind us,” the company said.
“We are disappointed in the court’s ruling and are considering our options,” EEOC regional attorney Barbara Seely said via email. Vorys partner Mark Knueve argued for Abercrombie and commission attorney James Tucker argued for the agency.
Sheri Qualters can be contacted at email@example.com.