Labor & Employment

Appeals court rules for Abercrombie in headscarf case


A federal appeals court has vacated a lower court’s grant of summary judgment in favor of the U.S. Equal Employment Opportunity Commission on its claim that Abercrombie & Fitch failed to provide a reasonable religious accommodation for a prospective employee who wears a hijab, or headscarf, for religious reasons.

The Denver-based 10th U.S. Circuit Court of Appeals in a 3-0 ruling Tuesday said Abercrombie is entitled to summary judgment as a matter of law, because the prospective employee never informed the retailer prior to its hiring decision that she wore the headscarf for religious reasons and needed an accommodation, the National Law Journal reports.

Judge Jerome A. Holmes, who wrote the court’s 76-page opinion (PDF), cited precedents from four other circuits that require a job applicant or employee to inform an employer of a religious practice that might conflict with company policy and require an accommodation.

The decision comes barely a week after Abercrombie settled similar claims in two California cases by agreeing to change its dress code to allow religious attire, the newspaper reports.

The EEOC had sued Abercrombie on behalf of Samantha Elauf, a 17-year-old Muslim girl who claimed that she was passed over for a job at an Abercrombie Kids store in Tulsa, Okla., in 2008 because she wears a hijab for religious reasons. The assistant manager who interviewed her said she took a superior’s advice not to hire Elauf because the hijab was inconsistent with Abercrombie’s “Look Policy,” or dress code.

Senior Judge David M. Ebel, in a partial dissent, said he agreed with the majority’s finding that the lower court’s ruling was erroneous. But he said a jury should decide whether Abercrombie is liable for religious discrimination.

EEOC regional attorney Barbara Seeley said the commission was disappointed in the court’s decision and considering its options.

Abercrombie’s lawyers referred questions to the company, which said it grants reasonable religious accommodations when requested, but that no such request had been made in this case.

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