Abercrombie Faces a Muslim-Headscarf Lawsuit

Given the hyper-sexualized advertising that Abercrombie & Fitch has long embraced, it is no surprise that the company encourages its employees to let their hair down. But is the company practicing discrimination if it won't hire a young woman who covers her head for religious reasons? Yes, according to the Equal Employment Opportunity Commission. Last week the EEOC filed suit against Abercrombie on behalf of Samantha Elauf, a 19-year-old community college student from Tulsa, Okla., who is Muslim. The suit alleges that Abercrombie "refused to hire Ms. Elauf because she wears a hijab, claiming that the wearing of the headgear was prohibited by its Look Policy," or employee dress code. The suit says that Abercrombie "failed to accommodate her religious beliefs by making an exception to the Look Policy. These actions constitute discrimination against Ms. Elauf on the basis of religion." (See pictures of being Muslim in America.)

Elauf, who had experience working in retail, interviewed for a position at a Tulsa Abercrombie Kids store in June 2008. During the interview, she wore a black hijab, or headscarf, in line with Muslim religious tradition. According to the EEOC, Elauf got word through a friend, who worked in the store, that the headscarf cost her the job. The EEOC alleges that during its investigation, Abercrombie & Fitch flatly told the agency, in a position statement, that "under the Look Policy, associates must wear clothing that is consistent with the Abercrombie brand, cannot wear hats or other coverings, and cannot wear clothes that are the color black." Elauf is suing for back pay and compensation related to emotional pain and anxiety. "If these allegations are true," says Chuck Thornton, deputy director of the ACLU of Oklahoma, "they are serious. In this day and age, it's not acceptable. Certainly, a headscarf is part and parcel of the Islamic experience." (Read "How to Reach Teens in a Recession? Ask Aéropostale.")

When contacted for a response, Abercrombie & Fitch issued the following statement: "We cannot comment on pending litigation. We have a strong equal-opportunity policy, and we accommodate religious beliefs and practices when possible. We are confident that the litigation of this matter will demonstrate that we have followed the law in every respect."

Was Abercrombie & Fitch within its rights to enforce its dress code? Title VII of the Civil Rights Act of 1964 prohibits religious discrimination. "It shall be an unlawful employment practice for an employer to fail or refuse to hire .... any individual ... because of such individual's race, color, religion, sex or national origin," the law states. The key language, says Stewart Schwab, an employment lawyer and dean of Cornell Law School, is found in a 1972 amendment to Title VII. This amendment defined "religion." It reads, "The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."

This case could hinge on a jury's interpretation of the phrase "undue hardship." If Abercrombie & Fitch had made an exception of its Look Policy for Elauf — a "reasonable accommodation" — would that move have hurt the Abercrombie brand? On the surface, that argument seems specious, at best. Would shoppers at that Abercrombie Kids store have been so jarred by the hijab that they wouldn't have bought the company's jeans? If the company makes that case, it doesn't think much of the religious tolerance of the good folks of Oklahoma. (Read "Abercrombie & Fitch: Worst Recession Brand?")

Still, this case is far from a lock for Elauf. "You can't give a blanket statement that this clearly violates her rights," says Schwab. "Employers often win cases involving dress codes. There's a general feeling that employers are entitled to set an image in their stores." If a company sells sex — you can sometimes find a shirtless male model hanging out in front of Abercrombie stores — let's face it, head coverings aren't ideal.

No matter how the suit turns out, Abercrombie & Fitch doesn't need another headache. The company just announced more dismal sales figures: August same-store sales declined 29%. In 2004, the EEOC sued Abercrombie for limiting its hiring of minorities; that case was settled for $50 million. A British woman sued the company for discrimination after Abercrombie's management allegedly shunted her to the stockroom for wearing a cardigan to cover her prosthetic arm. In August, a tribunal awarded her nearly $15,000. The EEOC has also sued Hollister, a teen retailer owned by Abercrombie, for allegedly firing a Pentecostal worker who asked to dress more modestly. That case is still pending.

As for Elauf, she is under attorney's orders to keep quiet about the case. But her grandfather, Ata Elauf, is clearly irked. "They put a wedge into her Americanism," says Elauf. "She grew up here speaking the language, going to school. Why did they do this? She's sort of confused."

Read "Brief History: Affirmative Action."