Update: The US Supreme Court reverses the below decision and holds that Abercrombie & Fitch’s refusal to hire Muslim woman who wears a headscarve is a violation of Title VII religious discrimination. This is a victory for the religious rights of workers in Las Cruces, New Mexico and El Paso, Texas. While the original decision came out of the 10th Cir (which covers New, Mexico and Las Cruces) it now applies to all Circuit Courts including the 5th Circuit which covers El Paso, Texas. Employment lawyers in El Paso, Texas and Las Cruces, New Mexico now have a better chance of winning religious discrimination cases as well as religious accommodation cases. This was not a wrongful termination case but was actually a refusal to hire case but this case would equally apply to wrongful termination matters. This is a rare victory for fired and injured workers in El Paso, Texas and Las Cruces, New Mexico.
The Tenth Cir (which includes Las Cruces, New Mexico) ruled that Abercrombie & Fitch’s refusal to hire Mulsim women who insist on wearing headscarves does not amount to Religious discrimination. This was a 2-1 decision and the EEOC is appealing the case to the U.S. Supreme Court. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., et al., No. 11-5110, 10th Cir. the 10th Cir reversed a trial court ruling that held that Abercrombie & Fitch had violated Samantha Elauf’s religious rights when they refused to hire her because she believed that she had to wear a headscarf as part of her Muslim faith. Abercrombie requires employees in its stores to comply with a “Look Policy.” Employees must dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores. Notably, the policy prohibits employees from wearing black clothing and “caps,” although the policy does not explicate the meaning of the term “cap.” An employee who doesn’t comply with the Look Policy may be subject to disciplinary action up to and including termination. During the interviewing process for sales-floor employees (referred to by Abercrombie as “models”), Abercrombie managers assess applicants on appearance and style. Abercrombie may grant accommodations if doing so would not harm the brand. The manger who was doing the hiring admitted that she did not know Elauf’s religion but assumed she was Muslim. The district manager made the decision not to hire Elauf becausethe head scarf was not a clothing item consistent with the company’s Look Policy. Interestingly the EEOC had asked the trial court for a prospective injunction (to order that Abercrombie won’t be able to not hire Muslim women who will wear headscarves). However the 10th Cir Court of Appeals reversed the decision of the trial court. The 10th Cir ruled: “Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie’s clothing policy. Furthermore, it follows ineluctably from the logic and reasoning of our decision that, in granting partial summary judgment to the EEOC, the district court erred,” Judge Jerome A. Holmes wrote for the majority. There was a strong dissenting opinion by Judge David M. Ebel and the EEOC has pledged to appeal the ruling to the Supreme Court.
This case is important for all employees from Las Cruces New Mexico and Southern New Mexico because it shows the importance for employees to communicate any religious accommodation with the employer and to do it in writing so that the employer can’t claim they did not know your religious reasons. This is part of a growing trend that is placing the burden on employees to prove that they requested accommodation and that they communicated the reason. The same is true for disability discrimination. If you need an accommodation let your employer know what you need and that the reason you need the accommodation is because of a disability. And do it in writing (by email is the best way so that you can cc your self and keep a copy). While this opinion primarily effects employees in Las Cruces, New Mexico and Southern New Mexico (because the 10th Cir. Court of Appeals is the Appellate Court for New Mexico) it has been the trend in the 5th Cir . as well which covers El Paso, Texas.