Legal Blog

Abercrombie & Fitch’s “No-Cap” Dress Code Scrutinized in Recent U.S. Supreme Court Decision

65_abercrombie--fitch-white-gold-leaf-painted-sign-new-york-cityOn June 1, 2015, the United States Supreme Court issued a decision in a case brought by the Equal Employment Opportunity Commission (“EEOC”) on behalf of Samantha Elauf.  Ms. Elauf, a practicing Muslim who wears a headscarf as required by her religious beliefs, applied for a position at one of Abercrombie & Fitch’s retail stores.  The interviewing supervisor gave Ms. Elauf a rating high enough to qualify for hire but, ultimately, Ms. Elauf’s application was rejected.  The interviewing supervisor was informed by her manager that Ms. Elauf’s headscarf would be a violation of the store’s dress code, which prohibited “caps.” The EEOC brought a claim against Abercrombie, claiming that the store’s refusal to hire Ms. Elauf violated Title VII, which prohibits religious discrimination.  Abercrombie argued that its refusal to hire Ms. Elauf was not a violation of Title VII because Abercrombie did not have “actual knowledge” that Ms. Elauf had a religious requirement that required her to wear a headscarf.  In other words, Abercrombie claimed that it could not have violated Title VII because Ms. Elauf did not inform the store that she needed a religious accommodation.  Abercrombie also argued that its “no-cap” dress code policy was a neutral policy and, as a result, it could not possibly constitute intentional discrimination. The Supreme Court determined that employers can violate Title VII even if they do not have knowledge of an applicant’s need for a religious requirement, stating “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”   The Court also rejected Abercrombie’s argument that a neutral policy cannot constitute intentional discrimination because “Title VII does not demand mere neutrality with regard to religious practices… Rather, it gives [religious practices] favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual’s ‘religious observance and practice.’” As highlighted by this recent decision, employers need to be particularly cautious when making any employment decisions.  In some situations, it may be unlawful for employers to rely on neutral employment policies like dress codes and mandatory work schedules when making employment decisions.  A periodic review of hiring practices is essential to ensure compliance and avoid potential litigation.


Labor and Employment Attorney April Rancier | 410.209.6426 April Rancier is an experienced labor and employment litigator who is well versed in both state and federal court proceedings with a practice concentration in Employment Discrimination. While Ms. Rancier focused in discrimination matters, she provides comprehensive and practical guidance for clients in the whole gamut of employee relations lssues that affect employers. These include issues arising out of claims of retaliation, claims of discrimination and harassment filed under Title VII and state and local anti-discrimination laws, and claims brought under federal statutes such as the Family Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), and American with Disabilities Act (ADA). Working as a labor attorney, Ms. Rancier handles many different labor issues, wrongful termination claims, non-compete agreements, employment agreements, and severance agreements. Ms. Rancier also handles other work related issues such as non-compete agreements, employment contracts, severance agreements and general contract claims, employment-related tort claims and other business and professional tort claims. A published writer and frequent lecturer, Ms. Rancier is often called upon to speak on issues arising from discrimination and harassment claims filed under Title VII, retaliation claims and practical strategies to attain business objectives and be compliant with state and federal laws.  

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