What Abercrombie's Religious Discrimination Loss Means for You

By Casey C. Sullivan, Esq. on June 02, 2015 | Last updated on March 21, 2019

Protections against religious discrimination got a little stronger yesterday, after a Supreme Court against Abercrombie and Fitch, the retailer famous for its risque ads and expensive jeans. The Court ruled that an Abercrombie store had violated the Civil Rights Act when it refused to hire a Muslim woman because she wore a head scarf. That's not exactly shocking.

What's new is that the woman, Samantha Elauf, had not said that her headscarf was religious garb and had not asked for religious accommodation. That doesn't matter, according to the 8-1 Supreme Court decision. A discriminatory motive, whether based on actual knowledge, suspicion or "merely a hunch" is enough to violate Title VII of the Civil Rights Act, according to the Justices. The ruling has major implications for all employers, not just the ones hiring shirtless retail staff.

Abercrombie Loses, So You Don't Have To

Consider sending Abercrombie a thank you card. They're making all the mistakes just so you can learn from their example. For years, the company had a questionable "Look Policy," which governed hiring and employment decisions -- always great to base those on looks -- and included rules regarding everything from hair styles to nail polish. The company's practice of hiring (mostly white, sometimes shirtless) men to work its retail stores lead to a racial discrimination lawsuit and $50 million settlement with the EEOC.

This isn't the retailer's first headscarf controversy either. In 2013, they settled two cases alleging anti-Muslim religious discrimination. In those cases, women working for Abercrombie's subsidiary Hollister were fired for refusing to remove their headscarves. Abercrombie settled the suits after courts rejected their undue-hardship defense. That's right, you can't argue that employing a diverse workforce will hurt your business, especially when you have little evidence to support it. Thanks for the lesson, Abercrombie.

Greater Need for Accommodations

The latest lesson from Abercrombie? Err on the side of accommodation. If an employers think or even suspect that there's a religious reason behind an employee's actions, they should be ready to make reasonable accommodations. According to the Supreme Court ruling, even if the management is not informed of an employee's religious practice, the Civil Rights Act may be used against an employer who refuses to make an exception for the employee if that refusal is based on a suspicion that the employee's actions are religiously motivated.

For employers trying to manage their public image, it's a good reminder that discrimination, whether based on a hunch or actual knowledge, is still prohibited.

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