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10th Cir Rules in Favor of Abercrombie & Fitch in Hijab Case

By Gabriella Khorasanee, JD | Last updated on

Earlier this week, the Tenth Circuit stuck its head in the sand, and proceeded to draw a thick, long line with it. It took 76 pages to explain why the court was reversing the district court's decision granting the Equal Employment Opportunity Commission's ("EEOC") motion for summary judgment against Abercrombie & Fitch.

To quote Shakespeare: "The lady doth protest too much, methinks."

Abercrombie & Fitch's Look Policy

Abercrombie & Fitch's Look Policy requires that sales associates, called Models, don't wear black and conform to the company's "classic East Coast collegiate style of clothing." The Look Policy has come under fire a lot in the last few years, especially when it comes to hijabs, the head scarves Muslim women wear. In fact, just this month in California, Abercrombie settled two cases where one woman was not hired, and another fired, after refusing to remove her hijab. The settlement included payment and revisions to Abercrombie's internal policies and procedures.

EEOC v. Abercrombie & Fitch

In this case, Samantha Elauf applied for a job at Abercrombie Kids (owned by Abercrombie & Fitch) and was not offered a position because her head scarf went against the Look Policy's rule against wearing "caps." In 2009, the EEOC filed a claim against Abercrombie for violations of Title VII of the Civil Rights Act of 1964.

The district court granted the EEOC's motion for summary judgment, and denied Abercrombie's motion for summary judgment. The Tenth Circuit reversed.

The court noted that the EEOC had the burden of proving that: (1) Elauf had a "bona fide religious belief that conflicts with an employment requirement;" (2) Elauf informed her prospective employer of the conflicting belief; and (3) Elauf was not hired because of the conflict.

Here, though Elauf wore a hijab to the interview, and the interviewer assumed she wore it because she was Muslim, the EEOC's claim failed because she did not explicitly inform the interviewer of her religious belief that was in conflict with Abercrombie's Look Policy. The court stated:

an applicant or employee -- should not be able to impose liability on an employer for failing to accommodate his or her religious practice on the ground that the employer should have guessed, surmised, or figured out from the surrounding circumstances, that the practice was based upon his or her religion and that the plaintiff needed an accommodation for it.

Headed for SCOTUS?

The Tenth Circuit seemed to over-explain that a person's true motivations could not be assumed, after all, a person could wear a hijab for personal, political or cultural reasons removed from religious ones.

Yeah, we didn't buy it either.

The test the Tenth Circuit adopted was stricter than the broader view of the notice requirement adopted by other circuits, and may well be headed over to the Supreme Court. There are probably enough divergent cases related to Abercrombie & Fitch alone. We'll have to wait and see if the EEOC decides to petition for writ of certiorari.

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