Abercrombie Wins Appeal Over Employee’s Right To Wear Headscarf

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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50 thoughts on “Abercrombie Wins Appeal Over Employee’s Right To Wear Headscarf”

  1. I think that they should hire some women in Nun outfits. Not real Nuns. Poser Nuns. With rulers so they could smack customers who got out of line.

  2. rafflaw: I think prohibiting any display of one’s religion could well be “part of the look” they want to cultivate.

    Should it be legal for a clothing designer to deny a person in a wheelchair a job as a runway model? Should Hooter’s be allowed to deny males jobs as servers?

    I have seen college girls (from my college!) in string bikinis helping to sell sports cars at a car show; and they were clearly selecting for a specific body type. Some employment decisions are essentially casting decisions for viewing pleasure; including selecting models for clothing.

    I don’t know how to separate casting requirements cleanly from discrimination, since all casting requirements have an element of discrimination based on physical attributes, but maybe entertainment law has already addressed this to some extent.

  3. While I understand the employer’s need to have a specific look, how far can they take it? As Elaine suggested, if someone wore a crucifix and that was not part of the look, could they fire that employee? How about a disabled person who uses a cane or a walker, but can do the job and wear the clothing style, can they go around laws against discriminating against the disabled due to the cane?

  4. JT: Can a store select attract, modern-looking women as part of its advertising effort and company persona?

    IMO, that should be allowed. Selling entertainment, sexualized or not, should be an allowable part of the transaction. I agree with A/F and Hooters and modeling agencies; the appearance (and / or gender) of workers can be part of the marketing and part of what is being sold. As long as the workers are informed of that prior to their agreement to work I see nothing wrong with that.

    As for the religious headdress or other symbols of religion, it seems reasonable to me that A/F might think that detracts from the appearance of sexual availability, liberation or openness, which is something they may consider a component of their “modern young adult” demographic (and is something being sold even more explicitly by other organizations such as Hooters and strip clubs).

    I don’t have a problem with this for Front Line employees dealing directly with customers; to me this is very similar to casting decisions in an acting job.

  5. I think many people are reading this opinion more broadly than the actual language suggests. The court determined that there was no violation because Ms. Elauf, who wore a scarf during the interview, did not specifically inform the interviewer that she was wearing it for religious reasons and needed an accommodation as wearing the religious requirement conflicted with the “look” policy. I think they are stretching things, as the interviewer testified she assumed that the scarf was worn for religious reasons, and wasn’t sure if the scarf would be a problem until she raised the issue with higher management after the interview was completed. As the applicant’s interview score was simply reduced due to the headscarf after the interview, taking her out of the recommended category, she never really had an opportunity to discuss the issue.

  6. 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.” – JT

    The case of the competing control freaks.

  7. Here is a woman who WAS hired by A & F despite her wearing a headscarf for religious reasons. She was simply asked to wear them in the colors of the Hollister brand. After some months of employment she was told she could not wear them at all and fired when she refused to take them off. A Federal district judge found that A & F had violated her civil rights.

    http://www.npr.org/blogs/thetwo-way/2013/09/09/220822451/abercrombie-fitch-was-wrong-to-fire-woman-over-headscarf

    1. “After some months of employment she was told she could not wear them at all and fired when she refused to take them off. A Federal district judge found that A & F had violated her civil rights.’

      MarshaMiller,

      with this set of facts AF discharged her illegally. What changes it to my mind is all those months of employment.

  8. JT “Should a company be allowed to create look policies that advance its corporate interests so long as it does not involve racial discrimination?”

    Absolutely. Personally, I wouldn’t shop at A & F, nor would they want me as a customer (the company says quite openly that they cater a certain type of customer and they are comfortable with that).

    JT “…a woman in Tulsa Oklahoma who said that she was passed over for a job due to her religious dress.”

    Laserhaas, this woman apparently (from JTs wording) wasn’t hired, so this wan’t a case of her showing up on her first day in hajib and being told you can’t wear that. I AM interested in your point, though, about wearing hajib to the interview. Everyone knows what A & F’s standards for their employee dress are. We’ve discusses the fairness on this blog several times. Since she wasn’t hired, one could assume that she wore the hajib to the interview and was not hired because that wasn’t the look the company wanted. What makes that question important is that if she was granted an interview and she DIDN’T wear hajib to the interview, then logic would point to the fact that she did this intentionally to provoke a lawsuit. Again, this woman knew what A & F’s standards were and A & F obliged her religious beliefs by not putting her in a position to have to violate them; they didn’t hire her in the first place. I also have a lot of friends who are Jewish and I have yet to see one of them wearing the kippah in the workplace. I would imagine A & F wouldn’t hire a guy wearing a kippah, either.

    1. Kraaken;

      I’m not into assumption of facts not in evidence. Until we have the whole details before of U.S. – of what exactly happened (interview etc) – it will remain a mystery.

      Same goes for guy wearing a kippa;
      because I highly doubt that to be true.

  9. It seems Abercrombie & Fitch is only hurting its own market. Try representing a client in court wearing jeans and a t shirt

  10. What was the case about the military not allowing the Yarmulke….If I recall it was Goldman vs Weinberger or something like that……

    The store has an image to sell…..ever seen a large woman at Victoria’s Secret…..

    That was good WD….

  11. Last week I went on a shopping trip with my friend to buy her granddaughter an “outfit”. My friend warned me that the store, which was in the mall, was different but that she enjoyed shopping there for her granddaughter.

    As we approached the store I saw what she meant. The walls were black, the lighting was purple and pink and all the young salespeople had multi-colored, spiked hair.

    We two old ladies walked in and were immediately greeted by youngsters. Chairs were brought for us to sit on and sizes of her granddaughter were noted down. Then the modeling began from shoes all the way up to earrings. They even brought us glasses of lemonade to sip as we waited for changes. All the while young shoppers were coming in and out of the store, making purchases, doing exchanges, or simply browsing.

    My friend spent a little under $600 that day and we both thoroughly enjoyed the “atmosphere”.

    There was definitely a noticeable age and “dress” preference in the sales staff … it was a pleasant part of the shopping experience.

    (Needless to say, that young sales staff had been very well trained.)

  12. I hate the “no shoes no shirt rules. In laid back SoCal you see “No shoes, no shirt, no problem” signs. That’s my libertarian philosophy.

  13. We know a Hooters waitress can’t shop @ the Hasid’s store. But, the Hasid’s can go into Hooters!! Or, walk by and peek inside.

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