When Samantha Elauf, 17, interviewed at her local Abercrombie & Fitch in Tulsa, Okla., in 2001, it was for the role of "model." Although she impressed manager Heather Cooke, Elauf didn't get the job.

The problem, per Abercrombie: Elauf, a practicing Muslim, had worn a black hijab (or headscarf) to her interview. The clothier has a ban on facial hair, unnatural-looking highlighted hair and dangly earrings. And “caps,” including headscarves worn for religious reasons.

The Equal Employment Opportunity Commission (EEOC) sued on Elauf’s behalf and won. The U.S. District Court for the Northern District of Oklahoma found that Abercrombie had engaged in religious discrimination. But in 2013, the 10th Circuit U.S. Court of Appeals reversed that decision, siding with Abercrombie.

The 10th Circuit contended in its ruling that Elauf isn’t protected under the 1964 Civil Rights Act because she didn’t explicitly inform Cooke during her interview "of the need for a religious accommodation."

"She would’ve had to say in an interview, ‘I wear this headscarf because of my religion and have to wear it and need an accommodation,'"said Lucretia Clemons, an employment lawyer and partner at the Philadelphia office of Ballard Spahr who has followed the case closely for years.

"It’s an unusual case. Abercrombie & Fitch admits they didn’t hire her because of her headscarf. That rarely happens."

Should the Supreme Court decide in Abercombie’s favor, the consequences could be damaging for diversity in the workforce, according to Clemons.

"Employers who are at the forefront of diversity practices deal with these issues in very different ways. The focus is on being inclusive. While Abercrombie’s policy is about their look and their brand, most employers in my experience wouldn’t care about that. They would want a good employee. And they’d make the accommodation."

 

 

Related Practices

Litigation
Labor and Employment