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FYI Abercrombie: Discrimination Is So Out of Style

Plaintiff in workplace discrimination case
Plaintiff in workplace discrimination case
Aleksandr Sverdlik,
Program on Freedom of Religion and Belief
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December 10, 2014

UPDATE - June 1, 2015: Supreme Court Rules Abercrombie Headwear-Banning “Look Policy” is Discriminatory, Denying Religious Accommodations Violates Title VII.

The Supreme Court will soon hear the case of Samantha Elauf, a Muslim teenager who was denied a job at an Abercrombie store solely because her religious headscarf, or hijab, didn't meet the company's "look policy." Abercrombie doesn't contest this fact. Instead, the retailer simply argues that it's off the hook because Elauf never explicitly asked the company not to discriminate against her.

If this sounds absurd, it's because it is.

Although not aware of the official look policy, Elauf had been advised by a friend who worked for Abercrombie that wearing a hijab shouldn't be a problem, especially if it wasn't black, a color the chain prohibits. At her interview, Elauf scored highly on all three interview criteria – including, ironically, being "outgoing and promot[ing] diversity"— and received a final score that indicated she should be hired. Although Elauf was wearing her headscarf, the interviewer didn't mention any potential issues, despite discussing other requirements, such as a ban on excessive makeup and nail polish.

The interviewer concluded that Elauf wore a hijab for religious reasons and was fully qualified for the job; a supervisor didn't see it the same way, however. A headscarf would violate the look policy, he said, and Elauf therefore shouldn't be hired.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion. How then has Abercrombie gotten away with it thus far? According to the company, even though the interviewer assumed that Elauf wore a hijab for religious reasons, without Elauf stating it explicitly, managers couldn't know for sure. Put another way, Elauf should somehow have assumed that Abercrombie would discriminate against her and politely ask that they not.

Today, the ACLU and the ACLU of Oklahoma, together with a broad coalition of religious groups, filed a friend-of-the-court brief in support of Elauf and the U.S. Equal Employment Opportunity Commission.

Open your eyes, Abercrombie. Discrimination is not in style.

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