By Lynn Kappelman and Dawn Solowey

On October 1, 2013, the Tenth Circuit issued a ruling in the religious discrimination case brought by a Muslim teenager who claimed that Abercrombie & Fitch refused to hire her as a salesperson because she wore a hijab—a traditional Muslim headscarf. The hijab conflicted with the retailer’s “Look Policy,” which required salespeople, referred to in the company as “Models,” to maintain a “classic East Coast collegiate style of clothing,” and forbade any head-coverings. The lower court had granted summary judgment to the EEOC, but the Tenth Circuit did an about-face, not only reversing the lower court’s judgment, but granting summary judgment to Abercrombie.

What Happened In This Case?

Seventeen year-old Samantha Elauf, who identifies herself as Muslim, and claimed to have worn a headscarf for years for religious reasons, applied for a sales floor position in an Abercrombie store in Tulsa, Oklahoma. At the job interview, to which she wore the headscarf, Ms. Elauf said nothing to Abercrombie about the fact that she was Muslim. She did not bring up the subject of the headscarf, or say that she wore it for religious reasons, that she felt a religious obligation to do so, or that she would need an accommodation from the “Look Policy.” However, her interviewer testified that she assumed that Ms. Elauf was Muslim, and wore the head-covering for religious reasons. There was evidence that the headscarf influenced Ms. Elauf’s interview scores, and in turn, the company’s decision not to hire her.

What Did The Court Hold?

The Tenth Circuit held that the burden is squarely on the applicant or employee to advise the employer that he or she has a religious practice that conflicts with a job requirement. Since it was undisputed that Ms. Elauf had not notified Abercrombie of the conflict, the Court held that the EEOC could not make this required showing, and the religious accommodation claim failed as a matter of law.
Continue Reading If You Want a Religious Accommodation, You’ve Got To Ask For It: What Employers Can Learn from the 10th Circuit’s Ruling in EEOC v. Abercrombie & Fitch