Week Ending 10/4/13: EEOC v. Abercrombie & Fitch

Alan Schorr’s Employment Case of The Week ending October 4, 2013

E.E.O.C. v. Abercrombie & Fitch Stores, Inc., --- F.3d ----, 2013 WL 5434809 (10th Cir. (Okla.) October 01, 2013)

In a decision that has left me scratching my head (and whatever hair is left on it), the 10th Circuit reversed a District Court grant of Summary Judgment on a religious accommodation case in favor of the EEOC, and instead granted summary judgment in favor of Abercrombie & Fitch. In E.E.O.C. v. Abercrombie & Fitch Stores, Inc., the Court of Appeals held that religious accommodations do not need to be granted, even when the religious circumstances are obvious, unless the employee expressly asks for the accommodation.

The E.E.O.C. brought the suit on behalf of Samantha Elauf, a Muslim woman who applied for a job at an Abercromble & Fitch store in Tulsa, Oklahoma. Elauf had worn a head scarf, or hijab, since she was thirteen. She applied for a job at Abercrombie. Abercrombie has a “look policy”. Employees must dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores. Notably, the policy prohibits employees from wearing black clothing and “caps,” although the policy does not explicate the meaning of the term “cap.”

Before the interview, Ms. Elauf asked a friend who worked at Abercrombie if she would be able to wear the hijab. The friend asked an assistant manager, who responded to Ms. Elauf that the head scarf would not be a problem, as long as the hijab was not black. She was then interviewed by a different assistant manager, Heather Cooke. Cooke testified that she never asked Ms. Elauf about her religion, but she assumed that Ms. Elauf was Muslim. The subject of the head scarf never came up during the interview, nor was it raised by Ms, Cooke or Ms. Elauf.

Although Cooke believed that Ms. Elauf would be a good candidate, she asked her regional manager if she could hire Ms. Elauf. The regional manager directed Cooke not to hire Ms. Elauf because her hijab would violate the “look policy”. Ms. Cooke testified that the regional manager told her to change Ms. Elauf's interview score on the appearance section from a two to a one, thereby bringing her overall score down to a five and ensuring that she would not be recommended for hire. With this understanding, Ms. Cooke threw away the original interview sheet and changed Ms. Elauf's score, thus implementing the regional manager’s alleged instructions. Ms. Cooke did not extend a job offer to Ms. Elauf. A few days after the interview, Ms. Elauf learned from her friend that she had not been hired because of her headscarf.

The EEOC filed suit on behalf of Ms. Elauf. After litigation and discovery, the District Court denied Abercrombie’s summary judgment and granted summary judgment in favor of the EEOC. The case went to trial on damages and the jury award $20,000 in compensatory damages. Abercrombie appealed, and, believe it or not, the Tenth Circuit reversed. In a startling opinion, the Tenth Circuit, ostensibly following ADA law on reasonable accommodations, held that Ms. Elauf had no case at all because she did not advise Abercrombie that she was Muslim and never specifically requested a religious accommodation from Abercrombie’s “look policy”. The Tenth Circuit not only reversed the trial verdict, but reversed and entered summary judgment in favor of Abercrombie.

In doing so, the Tenth Circuit completely ignored that fact that an Abercrombie employee had asked an assistant manager if the hijab would be a problem, and was advised that management did not consider it a problem. Why would Ms. Elauf ask for an accommodation

if she was already advised that management did not consider it a problem? Furthermore, the interviewer testified that she assumed that Ms. Elauf was Muslim. The Tenth Circuit shrugged that off stating that there is a big difference between assuming that she was Muslim and knowing that she was Muslim. The Tenth Circuit ruled that any employee seeking a religious accommodation must notify the employer of the employees religious beliefs and specifically ask for the accommodation.

There was a dissent which, in my opinion, correctly pointed out the many issues of fact, and reasoned that, while the District should not have granted summary judgment for the EEOC, the Court also should have denied summary judgment to Abercrombie so that a jury could sort out the facts. This is a terrible decision, but one that practitioners should be aware of. It appears that Federal Courts, especially in some conservative Districts, are going to continue chip away at the protections afforded by the ADA and religious accommodations under Title VII.

Plaintiffs’ Counsel: James M. Tucker (P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Daniel T. Vail, Acting Assistant General Counsel, with him on the brief), of U.S. Equal Employment Opportunity Commission

Defendants’ counsel: Mark A. Knueve of Vorys, Sater, Seymour and Pease LLP, (Daniel J. Clark and Joseph C. Fungsang of Vorys, Sater, Seymour and Pease LLP, and Jon E. Brightmire of Doerner, Saunders, Daniel & Anderson LLP, with him on the briefs).

District Court Judge: Gregory K. Frizzell, U.S.D.J.

Appeal Judges: Holmes (writing for the majority), Kelly and Ebel (concurring in part and dissenting in part).

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