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THE SAGA AGAINST THE HIJAB CONTINUES—ABERCROMBIE AND FITCH’S LOOK POLICY’S SHORTCOMINGS

Posted by Kashif Haque | Feb 26, 2015 | 0 Comments

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In 2008, a 17 year old Samantha Elauf interviewed for a sales associate positon (or “models” as the company calls them) for Abercrombie & Fitch (“A&F”). Her friend worked at the same store, so Elauf was able to get interview tips and fashion advice for the interview. She was compliant with their “look policy”—a specific guideline of what the models should wear and how they should look in order to promote the specific brand/branding of the company. Elauf had chosen to wear A&F jeans and a t-shirt to the interview. She also wore a black hijab, a headscarf traditional to Muslim women for modesty, which matched the outfit.

Elauf was not hired as a result of wearing the hijab, because it violated the look policy. The said policy prohibits models from wearing black or any sort of “cap.” The hiring manager assumed the headscarf was for religious purposes and assumed Elauf was Muslim. Elauf never explicitly expressed she was Musilm, nor did it come up in the interview.

The Equal Employment Opportunity Commission is now presenting the case to the US Supreme Court. The Daily Journal posed the question perfectly that the Supreme Court must answer, “How much information must an employer receive before it is on notice that an applicant or employee has religious needs that conflict with the job requirement, thereby requiring the employer to provide a reasonable accommodation?”

One side of the debate contends that mere assumptions for a religious accommodation (i.e. assuming Elauf is a Muslim and the headscarf was religious) is not enough to place the burden on the employer to accommodate. So, in this instance, the burden of religious discrimination cannot be proven because the hiring manager did not expressly know that Elauf was a Muslim, nor did Elauf inquire for an accommodation from the look policy to wear the hijab for religious purposes. The fact she was not hired because she violated the look policy could stand.

On the opposite end of the spectrum, some believe that explicit notice is not necessary for reasonable belief that a person is a certain religion. For Elauf, when she wore the hijab to her interview, it was safe to assume there was a probability of conflict due to religion. If the company had inkling of any conflict, then it is the company's obligation/burden to inquire if an accommodation was necessary. This did not happen with Elauf.

The facts are not too complicated in it of itself, but the interpretation can be very contentious. We will keep you updated on how the case ultimately plays out.

Source: Daily Journal

About the Author

Kashif Haque

Kashif Haque is a trial attorney and one of the founding attorneys of Aegis Law Firm. He served as the 2015 Chairman of the Orange County Bar Association—Labor and Employment Section. Mr. Haque has obtained millions of dollars on behalf of his clients through trial, arbitration and settlement. A...

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