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EEOC WINS CLAIM FOR MUSLIM APPLICANT DENIED JOB AT ABERCROMBIE

July 27, 2011

Abercrombie & Fitch (A&F) is one of the leading clothing companies in the world. They manufacture and sell apparel that target the 18-24 year old demographic who represent the “All-American Look.” Many people argue about the definition of what is “All-American,” since the U.S. continues to evolve and include many different cultures and races. A&F has been successful for over 100 years, but has been under scrutiny over its hiring practices.

In late 2004, A&F Fitch settled a major race and sex discrimination lawsuit (Gonzales v. Abercrombie & Fitch) agreeing to alter its well-known collegiate, all-American – and largely white – image by adding more blacks, Hispanics and Asians to its marketing materials. That settlement required the company to pay $40 million to several thousand minority and female plaintiffs who charged the company with discrimination.

Recently, A&F has come under fire for applying its corporate-wide “Look Policy” to prevent Muslim women from wearing head scarves while working for the company as “models.” Most recently, a federal jury in Tulsa, OK awarded the Equal Employment Opportunity Commission (EEOC) $20,000 in compensatory damages on behalf of a Muslim woman the commission alleged was denied a job by Abercrombie & Fitch Stores Inc. because she wears a headscarf (EEOC v. Abercrombie & Fitch Stores, Inc. dba Abercrombie Kids, July 13, 2011).

The EEOC sued Abercrombie & Fitch Stores, Inc. on a civil rights violation theory claiming that it discriminated against a female applicant when it refused to hire her to work in an Abercrombie & Fitch Kids store in 2008 because she insisted on wearing a headscarf. The EEOC had originally sought compensatory damages and injunctive relief again Abercrombie & Fitch. However, the jury rejected EEOC’s claims for punitive damages and injunctive relief, according to the judgment entered by Judge Gregory K. Frizzell of the U.S. District Court for the Northern District of Oklahoma.

This decision came on the heels of a lawsuit filed in intervention by a Hollister employee—one of Abercrombie’s stores—in which the employee alleged that Hollister and Abercrombie that she was fired for refusing to remove her hijab, or religious head scarf, and further, that the defendants failed to accommodate her religious beliefs (EEOC v. Abercrombie & Fitch Stores, Inc. dba Hollister Co., filed June 27, 2011).

In the most recent case, an Abercrombie district manager directed an assistant manager not to hire a teenage applicant who had worn a head scarf to an interview. Notwithstanding the assistant manager’s advice that the scarf was worn as an expression of the applicant’s religion, the district manager indicated that the head scarf did not comport with the company’s “Look Policy,” and that therefore  she should not be hired.

Noting that the teenager in the most recent case had worn the head scarf since she was 13 and she wore it currently, the court concluded that the record was devoid of evidence that her decision to wear the head scarf was based on anything other than religious belief. Moreover, contrary to the employer’s challenge, the court concluded there was no genuine issue of material fact as to whether the applicant’s religious belief was sincerely held. The inquiry, stated the court, is whether the “belief is held as a matter of conscience or instead, animated by motives of deception and fraud.” There was no evidence that the applicant was motivated by deception or fraud. Accordingly, the employer failed to rebut the applicant’s showing that she wore the scarf because of a bona fide religious belief.

Although the court emphasized a different finding could arise in other cases, in the most recent case Abercrombie could not demonstrate that it would have been unduly burdened had it accommodated the teenager’s religious beliefs.

In the other case, an employee filed a complaint in intervention, joining the EEOC in a lawsuit against Abercrombie. The complaint alleges that when the employee interviewed for her position at a Hollister store, she was asked whether she could wear a hijab while at work that comported with Abercrombie & Fitch’s “look policy,” to which she responded that she could. While the employee worked mainly in the stockroom, she occasionally visited the sales floor to replenish clothing. After working at the store for approximately four months, a visiting district manager saw the employee on the sales floor with her hijab. According to her complaint, the employee was instructed to speak with the director of human resources, who asked if the employee could remove the head scarf. After replying in the negative and indicating that she wore the hijab in accordance with her religious beliefs, she was suspended.

The employee alleges that she received a call asking her to return to the store for a meeting with the district manager and a human resources representative. Again she was asked whether she would remove her hijab in order to comply with the “look policy,” and again, she refused, citing her Muslim faith. The employee alleges that she was advised that Abercrombie & Finch could “not accommodate her religious observances,” and she was immediately terminated

In the California case, the employee alleged four cases of action under Title VII and the California Fair Housing and Employment Act (FEHA), including religious discrimination and failure to accommodate religious beliefs. Specifically, the defendants suspended and fired the employee because she wore her hijab and would not remove it, and refused to initiate any steps to accommodate her, the complaint alleges. Furthermore, had the defendants accommodated her, it would not have caused them undue hardship, the employee claims in her complaint. In each instance, she asserts that the defendants’ actions were intentional, willful, malicious, and/or done with reckless disregard for her rights

With its look policy at issue, the question remains whether Abercrombie will take steps necessary to ensure that Muslim women can work for the company, while still abiding by their religious beliefs. 07-27-2011. HRM Partners.