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Two things that I can safely say Abercrombie will do this year: (1) violently assault my nostrils for daring to walk within a two-mile radius of an Abercrombie store (they seriously must use a cologne fogger); and (2) be involved in a Supreme Court case involving religious discrimination.

Continuing our employment law highlight of the current Supreme Court term that started here and kept rolling with our previous post about Young v. UPS, a second major case to keep an eye on is EEOC v. Abercrombie & Fitch Stores, Inc.

Sadly not too far afield from my “fogger” comment, this case involves Abercrombie’s (eye roll in 3, 2, 1) “Look Policy,” that its sale-floor employees (whom it refers to as “Models”!) are required to comply with to promote its brand, which “exemplifies a classic East Coast collegiate style of clothing.”  Gag.  Employees who do not comply with the Look Policy are subject to discipline up to and including termination, because wearing inconsistent clothing “inaccurately represents the brand, causes consumer confusion, fails to perform an essential function of the position, and ultimately damages the brand.”

Samantha Elauf interviewed for a Model position at Abercrombie.  At the time, she was a seventeen-year-old practicing Muslim who wore a hijab for religious reasons.  During the interview, Elauf did not explicitly tell the Assistant Manager, Heather Cooke, that she was Muslim or that she wore her hijab for religious reasons, though Cooke did assume that Elauf was Muslim and that she wore a hijab for religious reasons.

After the interview, Cooke rated Elauf as being recommended for hire, but she took the hiring decision up the chain due to concerns over whether Elauf could wear her hijab on the sales floor.  Cooke’s District Manager told her that Elauf could not be hired because her hijab went against the Look Policy.  Cooke testified that the District Manager further told her to change Elauf’s interview score on the “appearance section” so that she was no longer recommended for hire.  Yada, yada, yada, Elauf finds out why she wasn’t hired and boom – there’s your lawsuit.

The EEOC argues that Abercrombie’s refusal to hire Elauf constituted religious discrimination and that its refusal to except her from its Look Policy on account of her hijab constituted a failure to accommodate her religion.  Abercrombie argues that Elauf never explicitly told her that she was Muslim or that she wore a hijab for religious (in contrast to other, potential) reasons.  The conflict between the two becomes  the issue presented: Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 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.

Notice is a constant issue in the workplace, so it’ll be interesting to see how this plays out.  Stay tuned.

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