Monday, September 21, 2009

Religious accommodation versus public image

According to an EEOC press release, the agency has filed suit against Ohio-based retailer Abercrombie & Fitch for alleged discrimination “against a 17-year-old Muslim by refusing to hire her because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.” According to the lawsuit, pending in Tulsa, Okla., an Abercrombie Kids store refused to hire Samantha Elauf for a sales position because she was wearing a head covering during her interview, which violated the company’s “Look Policy.” The lawsuit also claims that the store failed to accommodate her religious beliefs by making an exception to the Look Policy

According to the EEOC Compliance Manual on Religions Discrimination, “An employer’s reliance on the broad rubric of ‘image’ to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called ‘customer preference’) in violation of Title VII.”

Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. Undue hardship is a low standard – the proposed accommodation need only pose more than a de minimis cost or burden. At least one court, the 1st Circuit in Cloutier v. Costco Wholesale Corp. [PDF], has held that granting an exemption to a dress and grooming policy poses an undue hardship.

Anyone who has ever walked through a shopping mall knows that Abercrombie & Fitch portrays a certain image. Unless the EEOC can prove that the company promotes that image and maintains its “Look Policy” to exclude Muslim customers (or because of a preference for non-Muslim customers), it will have an uphill battle in proving that Abercrombie discriminated against this one job applicant by applying a facially neutral policy against her.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or