We previously discussed a lawsuit against retailer Abercrombie & Fitch over a rule barring the wearing of religious headscarves in their business. Now the United States Court of Appeals for the Tenth Circuit has handed down an important decision in favor of the store involving a woman in Tulsa Oklahoma who said that she was passed over for a job due to her religious dress. The federal government supported Samantha Elauf, 17, in her claim of discrimination, but the court ruled 3-0 against the arguments of the U.S. Equal Employment Opportunity Commission.

The Tenth Circuit ruled that summary judgment was appropriate in the case because the policy is a reasonable condition for employment. In the 76-page opinion below, the panel noted that “there is no genuine dispute of material fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or ‘hijab’ for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy.” The outcome was driven by the question of notice and the failure of the applicant to tell the store that the scarf was a religious practice and would have to remain in the course of employment.

What is most striking about this decision however is that it raised the right of businesses to maintain a “look” or image of their choosing. While I do not understand why the store would not want a more appealing, multicultural look (particularly for Muslim customers), the company made a strong case for saying that the appearance of employees is important to a clothing retailer:

Abercrombie contends that its Look Policy is critical to the health and vitality of its “preppy” and “casual” brand. . . . This is so, Abercrombie maintains, because it does very little advertising through traditional media outlets (e.g., print publications or television); instead, it relies on its in-store experience to promote its products. Consequently, Abercrombie expends a great deal of effort to ensure that its target customers receive a holistically brand-based, sensory experience. See, e.g., Aplt. App. at 70 (Dep. of Deon Riley, taken Mar. 17, 2011)(“Abercrombie has made a name because of the brand. It’s a fact that you walk into an environment, and it’s not just the smell or the sound, it’s the way the merchandise is set up. It’s the lighting. Most of all, it’s the stylish clothing . . . .”). The “main part” of a Model’s job is to “represent [Abercrombie’s] clothing[,] first and foremost.” Id. at 376. To Abercrombie, a Model who violates the Look Policy by wearing inconsistent clothing “inaccurately represents the brand, causes consumer confusion, fails to perform an essential function of the position, and ultimately damages the brand.”

We have previously discussed the right of businesses to insist on certain looks connected to their corporate image from Hooters to television anchors to other businesses (here and here). Should a company be allowed to create look policies that advance its corporate interests so long as it does not involve racial discrimination?

Since the court based much of its decision on the notice issue, the core free speech and free exercise issues are less clear in cases where notice is given by the employee and the employer refuses to hire the person. If the employee is wearing the store clothing, I am not sure why a head scarf would interfere with the store image or advertising. Indeed, shortly before the ruling, Abercrombie settled similar claims in two California cases by agreeing to change its dress code to allow religious attire.

I can certainly understand the store’s problem with a burka or body covering but a hard scarf seems less significant. Yet, the issue is far broader. Can a store select attract, modern-looking women as part of its advertising effort and company persona?

What do you think?

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