Abercrombie & Fitch’s ‘Look’ Loses Big With SCOTUS

Thanks to the clothing retailer's error, applicants only need to show that their need for an accommodation under Title VII motivated the employer's decision, not that the employer had knowledge of the need. (Photo courtesy of Wikimedia Commons)

It just got harder for embattled retailer Abercrombie & Fitch to protect its signature “look.” This morning The Supreme Court ruled 8-1 that the company’s failure to accommodate job applicant Samantha Elauf — who wore a hijab — violated civil rights law.

The ruling was a long time coming. The incident happened in 2008, when then-17-year-old Elauf applied for a job. She interviewed with Heather Cooke, an assistant manager, and was told the company's "look policy" meant she shouldn't wear nail polish, a lot of makeup or black clothing, but her head scarf never came up.

However, after the interview Cooke said she talked to her district manager, saying that she assumed Elauf was Muslim and wore the head scarf for religious reasons. The manager said Elauf shouldn't be hired because the scarf was inconsistent with the company’s look policy, which bans head gear.

The case has serious implications for employers’ standards because now an employee or a job applicant no longer has to request a religious accommodation — if the employer’s motive is later deemed a violation of Title VII, according to Michael Droke, a partner in the Labor and Employment division of international law firm Dorsey and Whitney. 

“An applicant need show only that his need for an accommodation was a motivating factor in the employer's decision, not that the employer had knowledge of his need,” Justice Antonin Scalia wrote in the majority opinion.

In light of the ruling, Droke said in a statement that employers should immediately review their handbooks and policy manuals to determine if there are potential issues that could cause discrimination. "The Abercrombie decision reinforces the importance of involving the human resources function any time a protected class is, or could be, involved in making an employment decision. The hiring manager in the case, Heather Cooke, raised the Look Policy question to her local and regional managers, but there is no evidence that the human resources department was involved," he explained. 

“Monday's case is the latest effort to ensure all persons protected by Title VII are not placed in the difficult position of choosing between adherence to one's faith and a job,” said P. David Lopez, General Counsel, Equal Employment Opportunity Commission, in a statement.

So, score a big one for religious freedom. Now, wonder what that settlement included?