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Abercrombie & Fitch & No Accommodations

In an 8-1 Supreme Court decision on June 1, 2015, the Court ruled against the retailer Abercrombie and Fitch (“A&F”) regarding claims of religious discrimination in EEOC v. Abercrombie & Fitch Stores, Inc.

In this case, a Muslim job candidate, Samantha Elauf (“Elauf”), went to an interview in 2008 at an A&F store in Oklahoma wearing a hijab (a headscarf worn for religious reasons). Shortly after, Elauf was turned down for the position, with A&F stating their reason for the denial was because Elauf did not comply with the employee dress code i.e. the “Look Policy,” that bans hats. Elauf sued with the assistance of the EEOC claiming A&F violated her Title VII rights by denying her employment based on her religious beliefs and practice.

A&F attempted to stand on some legal footing by arguing there were no discriminatory practices in this hiring because A&F supposedly did not know the scarf was worn for religious reasons (the hijab was never brought up on the interview and Elauf never requested to be accommodated). However, the Court was not buying this argument, with the justices highlighting that A&F denied her a position with the company because of the headscarf. Meaning, A&F assumed she would wear the headscarf daily because of her religious practice. Justice Scalia, delivering the opinion, went on to say that an employer’s employment decision can violate Title VII if the applicant can merely show “that [the candidate’s] need for an accommodation was a motivating factor in the employer’s decision” and such “disparate-treatment claims” to accommodate religious practices are “straightforward.” Although a big ruling for the EEOC, note that this case does not mean the Court found A&F to have discriminated against Elauf, only that she may now pursue her claim in a lower court with the instructions given by the higher Court. This decision is a significant one, with the Supreme Court telling companies it is necessary to be more aware and sensitive to religious and cultural matters.

This is not the first court case against the retail giant A&F, with A&F previously having to pay approximately $50 million in a race discrimination settlement in back in 2003 (see, Gonzalez v. Abercrombie and Fitch Stores, Inc.). Moreover, New York courts have also seen similar cases against A&F. In the Southern District, a race discrimination claim in 2013 arose based on conduct that occurred in A&F’s Fifth Avenue store. In this case, an African American employee, Dulazia Burchette, alleged that managers of the store would force her and her African American co-workers to frequently change her hair color to black to comply with A&F’s “Look Policy.” She alleged that this policy made African American employees “retain the hair color they were born with or color their hair only dark brown or black ... to conform with the color of their skin” as a condition of their employment. She also claimed discrimination, retaliation and a hostile work environment.

However, the Southern District Court found she did not have enough evidence to prevail given that she could not “present any (non-conclusory) evidence that any of the three Caucasian employees of A&F” that were “similarly situated employees” were “punished differently for actual, comparable incidents” and granted summary judgment for A&F (see, Burchette v. Abercrombie & Fitch Stores, Inc.). For more New York employment discrimination cases against A&F, see also Perles v. Abercrombie & Fitch Co and Kizer v. Abercrombie & Fitch Co.

A&F has been in the spotlight for controversies sparked by their race and sex intolerance regarding their retail items as well. Asian American protesters in 2002 refused to purchase from the retailer after the company printed t-shirts with racially insulting slogans. Such slogans included “Wok-N-Bowl, Chinese food and Bowling,” (featuring a man in a rice hat bowling) and “Pizza Dojo: Eat in or Wok Out,” (with “You love long time” printed in yellow). Or, the slogan that personally insults me the most, “The Wong Brothers Laundry Service, Two Wongs can Make it White,” seriously? Although these shirts were (not surprisingly) pulled, A&F obviously did not learn its lesson when printing a girls t-shirt in 2005, which said “Who Needs Brains When You Have These?”

Sadly, A&F still continues to stay open given boycotts and lawsuits galore, but at least their discriminatory ways are no longer being overlooked. Discrimination in any form should not be allowed, but employment law cases being brought can help fight such intolerance. It is important to be aware of one’s rights, even when being hired, and to seek an attorney when you feel your rights have been violated.

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