For the past few years, Abercrombie & Fitch has been fighting to uphold its “Look Policy,” described by the website Buzzfeed as “effortless sex-meets-Ivy League aesthetic.” A&F’s Look Policy, as reported by Buzzfeed, provides that its employees must, among other things, represent A&F with “natural class” and “American style.” The Look Policy governs hairstyle, clothing, shoes, makeup, fingernail polish, and tattoos, and prohibits facial hair, hats and other head coverings.
After A& F settled a lawsuit with the EEOC in 2004 for $50,000,000, A&F modified its practices and policies, including its Look Policy, to be more inclusive.
Nevertheless, the A&F Look Policy continued to prohibit hats and other head coverings. As a result, A&F has continued to face lawsuits alleging that its refusal to waive the Look Policy to allow for the wearing of head scarfs as accommodation to the sincerely held religious beliefs of Muslim women violated Title VII and applicable state law. A&F lost one such case in 2011, when a federal court in Tulsa, OK found that Abercrombie Kids subjected a 17-year-old Muslim girl to religious discrimination when it refused to hire her for a sales position because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs. Recently, a different federal court reached the same conclusion, finding that A&F had engaged in religious discrimination when it terminated a Muslim employee who refused to take off her hijab while working in the store.
The facts of EEOC v. Abercrombie & Fitch were not disputed. In short, an A&F employee, Umme-Hani Khan, was a devout Muslim whose sincerely held religious belief required her to wear a hijab while in public or in the presence of men who are not immediate family members. After wearing a hijab in “store colors” for four months, Ms. Khan was disciplined after a District Manager visited the store and noticed Ms. Khan was in violation of the Company’s Look Policy. A&F asked Ms. Khan to remove her hijab while in the store; Ms. Khan refused and her employment was terminated.
A&F tried to defend against the EEOC and Ms. Khan’s claim of religious discrimination by arguing that it could not reasonably accommodate Ms. Khan without undue hardship. More specifically, A&F argued that compliance with the Look Policy is critical to the Company’s success, and that deviations from the policy “detract from the in-store experience” and negatively affect its brand. In support of its argument, A&F offered testimony from its employees, all of whom expressed their personal belief that Ms. Khan’s hijab would cause harm to the Company. Notably, A&F failed to offer any sales reports, surveys, customer complaints, or any concrete evidence to support its undue hardship claim.
The Court rejected A&F’s argument, stating that the evidence A&F had presented was speculative. By failing to produce more than some employees’ subjective belief that violation of the Look Policy could result in declining sales, A&F failed to raise a triable issue as to whether an undue hardship would have resulted from allowing Ms. Khan to wear her hijab. Accordingly, the court granted summary judgment to the EEOC, and against A&F.
The EEOC is continuing to target companies that refuse to alter dress codes as accommodation for employees’ sincerely held religious beliefs. Just last week, the EEOC issued a press release announcing that it filed suit against two companies operating a chain of KFC stores for terminating female employees, whose Pentecostal beliefs require that they wear skirts, refused to wear the KFC uniform pants.
This issue is not going away. HR and front-line managers should know that all requests for accommodation (based on the requester’s religious beliefs or disability) must be considered, and that refusals may need to be defended.