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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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Abercrombie & Fitch Continues its Policy of Discrimination, for now…

Abercrombie & Fitch is well known for its East Coast collegiate style of clothing. The company has come under fire in recent years because its CEO, Mike Jeffries went on a rant about his ideal customer in what has become known as his discriminatory fat-shaming. He only wants to see his clothes on the ‘hot, cool kids.’ Which is an odd statement coming from the 70 year old, botox’ed, over plasticized executive who has clearly seen better days.

And most recently, the company has seen a discrimination suit brought against it by the Equal Employment Opportunity Commission (EEOC) rise to the purview of the Supreme Court of the United States. This case is not about the weight discrimination espoused by its top exec, but by its dress code, in particular the way it applies to individuals who wear certain religiously required items.

In 2008, Samantha Elauf, a 17 year old, practicing Muslim applied and interviewed for a job as a ‘model’ with the Abercrombie & Fitch store at the Woodland Hills Mall in Tulsa, Oklahoma. (A&F pretentiously refers to its floor sales staff as ‘models.’) Ms. Elauf arrived at her interview wearing a black headscarf known as a hijab, as she felt she was required to do by the tenets of her faith.

This was apparently in violation of the company’s dress code, which attempts to exemplify the collegiate life style (specifically, of the ivy league east coast), and requires its models to wear clothes that are sold and/or are similar to those sold in the stare itself. Models are prohibited from wearing black clothing, and in particular are not allowed to wear ‘caps’ whatever that means (an item that isn’t defined in the policy itself).

Apart from the offending hijab, Ms. Elauf was found to be suitable for the model position, but was not hired solely because of her scarf. During the interview, Ms. Eauf made no mention of her religion, or the necessity for the headscarf, nor did she discuss with the interviewers any need for accommodation in relation to her religious garb and the conflicting dress code policy.

Her case was taken by the EEOC and she was granted summary judgment by the trial court, which decision was later reversed by the Tenth Circuit Court of Appeals. The Appeals Court held that because Ms. Elauf had not informed her interviewers by directly and explicitly notifying them that she wore the headscarf for religious reasons, and her need for an accommodation based on her religion, that she could not then hold the company liable for failure to accommodate or to provide an exemption from the company’s look policy.

The EEOC appealed that decision to the United States Supreme Court and on October 2, 2014, SCOTUS agreed to hear arguments in the case. This case will hinge on the issue of notice to the employer regarding the religious nature of Ms. Elauf’s dress. If the Supreme Court decides that the Tenth Circuit was right in its decision, it basically places the burden of notification on the employee or potential employee, relieving employers from the need to inquire about an employee’s religious beliefs. If the Court reverses the Tenth Circuit’s decision, it will presumably require employers to at least ask if there is a need for accommodation in cases where an employee or prospective employee’s mode of dress conflicts with company policy. Employers (and their paid lap-dog attorneys) of course will argue that this places them in an untenable position of putting them at risk of stereotyping if they ask about religious beliefs, while also running the risk of not anticipating the possible need for accommodation.

That seems to be a baseless argument, especially in the case at bar, as it would have been a simple task for the interviewers to mention the dress code (seeing that it was an issue), and ask whether she would like to discuss the need for an exemption from the policy.

Have you been discriminated against in a job interview?

Have you been discriminated against at work?

Even if you don’t know the answer to those questions, but suspect that perhaps you have been, Stephen Danz can answer your questions.

If you feel that you may have been discriminated against at work or in a job interview, contact the Law Offices of Stephen Danz & Associates at (877) 789-9707 or use the Contact Form on our website to schedule a FREE CONSULTATION today. Stephen does not take cases representing employers. He has made an entire career out of defending the rights of employees in California and around the world. He also takes nearly all of his cases on a contingency basis, which means that you are not responsible for legal fees unless and until you receive a settlement or judgment on your case.