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Retail
10 min read
Areas of Expertise :
Discrimination, Employment Law, Human Resources, Religion
Published Date:
Last Modified Date:
Jurisdiction:
Federal. U.S. Supreme Court
Court:
Samantha Elauf received a qualifying interview score when she applied for a sales-floor position at an Abercrombie Kids store in Tulsa, Oklahoma. The result changed after management reviewed whether her hijab complied with Abercrombie’s employee appearance policy. Elauf had not explained during the interview that she wore the headscarf for religious reasons, and she did not request an exception.
The Equal Employment Opportunity Commission later filed suit on Elauf’s behalf under Title VII of the Civil Rights Act of 1964. The district court ruled for the EEOC, while the Tenth Circuit concluded that Elauf’s failure to give direct notice defeated the claim. On June 1, 2015, the U.S. Supreme Court reversed and held that an applicant may establish disparate treatment by showing that the anticipated need for a religious accommodation was a motivating factor in the employer’s decision.
Samantha Elauf applied for a sales-floor position at the Abercrombie Kids store in Woodland Hills Mall in Tulsa, Oklahoma, on June 25, 2008. The following day, she attended an interview wearing a black hijab. Elauf did not explain that the headscarf was religious or ask for an exception to Abercrombie’s appearance requirements. Assistant manager Heather Cooke conducted the interview and believed that Elauf was Muslim and that the hijab was connected to her faith. Cooke initially gave her a total score of six, which qualified Elauf for a hiring recommendation. The result changed after Cooke contacted district manager Randall Johnson to ask whether the headscarf complied with Abercrombie’s Look Policy. Cooke later testified that Johnson directed her to lower Elauf’s appearance score, reducing the total to five and removing her from consideration.
More than a year after the interview, the Equal Employment Opportunity Commission filed suit in the U.S. District Court for the Northern District of Oklahoma. The agency alleged that Abercrombie refused to hire Elauf because of her religious practice and failed to consider an exception to the Look Policy. The complaint sought back pay, compensatory damages, and injunctive relief under Title VII of the Civil Rights Act of 1964.
Abercrombie denied that it had violated federal law. Its position was that Elauf had never told the interviewer that the hijab was religious or that she needed an accommodation. The company also maintained that sales-floor employees were expected to follow appearance standards connected to its retail presentation.
The parties asked the U.S. District Court for the Northern District of Oklahoma to resolve liability through summary judgment. The court granted partial summary judgment to the EEOC and denied Abercrombie’s motion, finding that Samantha Elauf wore the hijab because of a sincerely held religious belief and that management had enough information to recognize a possible conflict with the Look Policy. The record included deposition testimony from EEOC expert John L. Esposito, Ph.D., concerning Islam and the reasons women may wear headscarves, along with opinions from Abercrombie experts Dr. Erich A. Joachimsthaler on brand strategy and Kathleen K. Lundquist on the Model position and Look Policy requirements.
Abercrombie argued that allowing the hijab would interfere with its brand presentation and create undue hardship. The court rejected that defense because the expert materials did not include collected or analyzed data showing measurable brand harm, and Lundquist had not conducted a study or reviewed a report on the effects of Look Policy noncompliance. The record also showed that Abercrombie had approved one headscarf exception before Elauf applied and granted additional exceptions after rejecting her application.
After liability was decided, the case proceeded to a jury trial on damages. The jury awarded the EEOC $20,000 in compensatory damages for Samantha Elauf, while the district court denied prospective injunctive relief. Abercrombie then appealed both the damages judgment and the earlier ruling that it could be held liable even though Elauf had not directly requested a religious accommodation.
The Tenth Circuit took a different view of the notice issue. In a divided decision, the appellate panel ruled that an applicant generally must inform an employer that a workplace requirement conflicts with a religious practice and that an accommodation is needed. The majority concluded that an employer’s assumption about religion was not enough. Because Elauf had not discussed the religious basis for her hijab or directly requested an exception, the panel found that she had not provided sufficient notice. The court reversed the district court and directed that judgment be entered for Abercrombie. The EEOC later sought Supreme Court review of that standard.
The U.S. Supreme Court granted the EEOC’s petition for a writ of certiorari. The appeal asked whether Title VII required direct notice from an applicant before an employer could be liable for refusing to hire that person because of an expected accommodation.
The parties framed the issue differently. The EEOC focused on the reason behind the hiring decision, while Abercrombie argued that liability required confirmed knowledge of both the religious practice and the need for an exception.
During oral argument, the federal government maintained that Abercrombie had considered Elauf’s expected need for a hijab exception when it decided not to hire her. Counsel for Abercrombie responded that an employer should not face liability unless an applicant clearly identifies the religious conflict and requests an accommodation. The Justices also examined how employers should address a possible religious practice without making improper assumptions or asking unnecessary questions about an applicant’s beliefs. Much of the discussion turned on whether Title VII required actual knowledge or whether evidence of motive was enough.
Justice Antonin Scalia wrote the Court’s 8-1 opinion reversing the Tenth Circuit. The Supreme Court held that Title VII does not require an applicant to prove that the employer had confirmed knowledge of a need for religious accommodation. A claimant may instead show that the anticipated accommodation was a motivating factor in the employment decision.
The opinion drew a distinction between motive and knowledge. An employer may act because it wants to avoid a possible accommodation even when it is uncertain whether the applicant will request one. In Elauf’s case, the allegation was that Abercrombie rejected her because management expected that permitting the hijab would require an exception to the Look Policy.
The Court did not decide that every requested religious accommodation must be granted. Employers may still raise an undue-hardship defense when the proposed adjustment would impose a legally sufficient burden on the business. The case was returned for further proceedings under the Supreme Court’s interpretation of Title VII.
After the Supreme Court ruling, Abercrombie moved to dismiss its remaining appeal. The Tenth Circuit granted the request on July 27, 2015, and no further trial or appellate ruling followed.
The EEOC later reported that Abercrombie paid Elauf $25,670 in damages and separately paid $18,983 in court costs. The dismissal brought the federal litigation to a close nearly six years after the complaint was filed.
Supreme Court of the United States
Case Name:
Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.
Employment Discrimination
Equal Employment Opportunity
Labor and Employment
Employment Disputes
Employee Training
Branding
Retail Store Management
Retail Stores
Samantha Elauf received a qualifying interview score when she applied for a sales-floor position at an Abercrombie Kids store in Tulsa, Oklahoma. The result changed after management reviewed whether her hijab complied with Abercrombie’s employee appearance policy. Elauf had not explained during the interview that she wore the headscarf for religious reasons, and she did not request an exception.
The Equal Employment Opportunity Commission later filed suit on Elauf’s behalf under Title VII of the Civil Rights Act of 1964. The district court ruled for the EEOC, while the Tenth Circuit concluded that Elauf’s failure to give direct notice defeated the claim. On June 1, 2015, the U.S. Supreme Court reversed and held that an applicant may establish disparate treatment by showing that the anticipated need for a religious accommodation was a motivating factor in the employer’s decision.
Samantha Elauf applied for a sales-floor position at the Abercrombie Kids store in Woodland Hills Mall in Tulsa, Oklahoma, on June 25, 2008. The following day, she attended an interview wearing a black hijab. Elauf did not explain that the headscarf was religious or ask for an exception to Abercrombie’s appearance requirements. Assistant manager Heather Cooke conducted the interview and believed that Elauf was Muslim and that the hijab was connected to her faith. Cooke initially gave her a total score of six, which qualified Elauf for a hiring recommendation. The result changed after Cooke contacted district manager Randall Johnson to ask whether the headscarf complied with Abercrombie’s Look Policy. Cooke later testified that Johnson directed her to lower Elauf’s appearance score, reducing the total to five and removing her from consideration.
More than a year after the interview, the Equal Employment Opportunity Commission filed suit in the U.S. District Court for the Northern District of Oklahoma. The agency alleged that Abercrombie refused to hire Elauf because of her religious practice and failed to consider an exception to the Look Policy. The complaint sought back pay, compensatory damages, and injunctive relief under Title VII of the Civil Rights Act of 1964.
Abercrombie denied that it had violated federal law. Its position was that Elauf had never told the interviewer that the hijab was religious or that she needed an accommodation. The company also maintained that sales-floor employees were expected to follow appearance standards connected to its retail presentation.
The parties asked the U.S. District Court for the Northern District of Oklahoma to resolve liability through summary judgment. The court granted partial summary judgment to the EEOC and denied Abercrombie’s motion, finding that Samantha Elauf wore the hijab because of a sincerely held religious belief and that management had enough information to recognize a possible conflict with the Look Policy. The record included deposition testimony from EEOC expert John L. Esposito, Ph.D., concerning Islam and the reasons women may wear headscarves, along with opinions from Abercrombie experts Dr. Erich A. Joachimsthaler on brand strategy and Kathleen K. Lundquist on the Model position and Look Policy requirements.
Abercrombie argued that allowing the hijab would interfere with its brand presentation and create undue hardship. The court rejected that defense because the expert materials did not include collected or analyzed data showing measurable brand harm, and Lundquist had not conducted a study or reviewed a report on the effects of Look Policy noncompliance. The record also showed that Abercrombie had approved one headscarf exception before Elauf applied and granted additional exceptions after rejecting her application.
After liability was decided, the case proceeded to a jury trial on damages. The jury awarded the EEOC $20,000 in compensatory damages for Samantha Elauf, while the district court denied prospective injunctive relief. Abercrombie then appealed both the damages judgment and the earlier ruling that it could be held liable even though Elauf had not directly requested a religious accommodation.
The Tenth Circuit took a different view of the notice issue. In a divided decision, the appellate panel ruled that an applicant generally must inform an employer that a workplace requirement conflicts with a religious practice and that an accommodation is needed. The majority concluded that an employer’s assumption about religion was not enough. Because Elauf had not discussed the religious basis for her hijab or directly requested an exception, the panel found that she had not provided sufficient notice. The court reversed the district court and directed that judgment be entered for Abercrombie. The EEOC later sought Supreme Court review of that standard.
The U.S. Supreme Court granted the EEOC’s petition for a writ of certiorari. The appeal asked whether Title VII required direct notice from an applicant before an employer could be liable for refusing to hire that person because of an expected accommodation.
The parties framed the issue differently. The EEOC focused on the reason behind the hiring decision, while Abercrombie argued that liability required confirmed knowledge of both the religious practice and the need for an exception.
During oral argument, the federal government maintained that Abercrombie had considered Elauf’s expected need for a hijab exception when it decided not to hire her. Counsel for Abercrombie responded that an employer should not face liability unless an applicant clearly identifies the religious conflict and requests an accommodation. The Justices also examined how employers should address a possible religious practice without making improper assumptions or asking unnecessary questions about an applicant’s beliefs. Much of the discussion turned on whether Title VII required actual knowledge or whether evidence of motive was enough.
Justice Antonin Scalia wrote the Court’s 8-1 opinion reversing the Tenth Circuit. The Supreme Court held that Title VII does not require an applicant to prove that the employer had confirmed knowledge of a need for religious accommodation. A claimant may instead show that the anticipated accommodation was a motivating factor in the employment decision.
The opinion drew a distinction between motive and knowledge. An employer may act because it wants to avoid a possible accommodation even when it is uncertain whether the applicant will request one. In Elauf’s case, the allegation was that Abercrombie rejected her because management expected that permitting the hijab would require an exception to the Look Policy.
The Court did not decide that every requested religious accommodation must be granted. Employers may still raise an undue-hardship defense when the proposed adjustment would impose a legally sufficient burden on the business. The case was returned for further proceedings under the Supreme Court’s interpretation of Title VII.
After the Supreme Court ruling, Abercrombie moved to dismiss its remaining appeal. The Tenth Circuit granted the request on July 27, 2015, and no further trial or appellate ruling followed.
The EEOC later reported that Abercrombie paid Elauf $25,670 in damages and separately paid $18,983 in court costs. The dismissal brought the federal litigation to a close nearly six years after the complaint was filed.
Plaintiff (EEOC): Islam and Muslim Faith Expert Witness
John L. Esposito, Ph.D., gave deposition testimony concerning Islam and the use of the hijab. He explained that headscarves may be worn for cultural, religious, or nationalistic reasons and discussed the meaning and different styles of hijab.
Defense (Abercrombie): Marketing Strategy and Branding Expert Witness
Dr. Erich A. Joachimsthaler provided written testimony and deposition testimony concerning Abercrombie’s marketing strategy, brand identity, and in-store customer experience. He stated that exceptions to the Look Policy could negatively affect the company’s brand, although the district court found that he had not collected or analyzed data supporting that opinion and had not adequately considered the effect of headscarf exceptions Abercrombie had already granted.
Defense (Abercrombie): Job Duties and Look Policy Expert Witness
Kathleen K. Lundquist provided a declaration and deposition testimony concerning the duties of Abercrombie’s Model position and the role of the Look Policy in the company’s job requirements. She identified brand presentation and compliance with appearance standards as functions of the position, but she had not conducted a study or reviewed a report concerning the effect of Look Policy noncompliance on the brand.
Human Resources Expert Witness
A human resources expert witness may evaluate hiring procedures, interview practices, manager training, workplace appearance policies, and religious accommodation processes under Title VII. In a dispute like this, the analysis may address whether decision-makers followed consistent hiring standards, documented the reasons for changing an applicant’s score, and handled a possible religious conflict through appropriate internal procedures.
Elauf’s Interview Score Documented the Hiring Decision
Heather Cooke initially gave Samantha Elauf a score of six, which qualified her for a hiring recommendation. After consulting district manager Randall Johnson about the hijab, Cooke lowered Elauf’s appearance score and reduced the total to five. That change connected the final hiring result to management’s treatment of the headscarf under Abercrombie’s Look Policy.
The Look Policy Governed Abercrombie’s Treatment of the Hijab
Abercrombie relied on its employee appearance policy when management decided that Elauf’s hijab was not permitted. The written policy expressly prohibited caps, while managers treated the hijab as prohibited headwear. The lawsuit examined how that policy was applied when a religious practice appeared to conflict with a retail appearance standard.
The Courts Disagreed About Elauf’s Failure to Request an Accommodation
Elauf did not tell Cooke that she wore the hijab for religious reasons, and she did not ask for an exception during the interview. The district court concluded that management already had enough information to recognize the possible religious conflict. The Tenth Circuit disagreed and treated direct notice from Elauf as necessary, while the Supreme Court later rejected that requirement.
Abercrombie’s Undue-Hardship Evidence Was Found Insufficient
Abercrombie argued that allowing the hijab could interfere with its brand presentation and in-store image. The district court found that the company had not produced specific evidence showing reduced sales or measurable business harm from headscarf exceptions. The record also included approved exceptions for other employees, which the court considered when reviewing the defense.
The Supreme Court Focused on Why Abercrombie Acted
The Supreme Court separated employer motive from confirmed knowledge. The question was not limited to whether Abercrombie knew with certainty that Elauf would request an accommodation. The Court ruled that she could proceed by showing that management expected an exception would be needed and treated that expectation as a reason not to hire her.
After the Supreme Court rejected the Tenth Circuit’s direct-notice requirement, the case returned to the lower court under a motive-based Title VII standard. Abercrombie then moved to dismiss its remaining appeal, and the Tenth Circuit granted that request on July 27, 2015. The EEOC later reported that Abercrombie paid Elauf $25,670 in damages and separately paid $18,983 in court costs, bringing the litigation to a close.
Why did the district court and the Tenth Circuit reach different conclusions?
The district court found that Abercrombie had enough information to recognize a possible religious conflict, even though Samantha Elauf did not directly request an accommodation. The Tenth Circuit applied a stricter notice standard and concluded that Elauf needed to tell the employer that the hijab was religious and that an exception was required.
What did Abercrombie’s Look Policy prohibit?
The written Look Policy expressly prohibited caps as part of the company’s employee appearance standards. Management treated Elauf’s hijab as prohibited headwear, even though the policy did not specifically mention hijabs.
How did Elauf’s interview score affect the hiring decision?
Elauf initially received a total score of six, which qualified her for a hiring recommendation. After Heather Cooke consulted district manager Randall Johnson about the hijab, Elauf’s appearance score was reduced and her total fell to five, removing her from consideration.
Did the Supreme Court decide whether Abercrombie proved undue hardship?
No. The Supreme Court decided the legal standard for motive and notice under Title VII. It did not issue a final ruling on whether allowing Elauf to wear the hijab would have created undue hardship for Abercrombie.
What happened after the Supreme Court returned the case to the lower courts?
Abercrombie asked the Tenth Circuit to dismiss its remaining appeal, and the court granted that request on July 27, 2015. The EEOC later reported that Abercrombie paid Elauf $25,670 in damages and separately paid $18,983 in court costs.
Plaintiff (EEOC): Islam and Muslim Faith Expert Witness
John L. Esposito, Ph.D., gave deposition testimony concerning Islam and the use of the hijab. He explained that headscarves may be worn for cultural, religious, or nationalistic reasons and discussed the meaning and different styles of hijab.
Defense (Abercrombie): Marketing Strategy and Branding Expert Witness
Dr. Erich A. Joachimsthaler provided written testimony and deposition testimony concerning Abercrombie’s marketing strategy, brand identity, and in-store customer experience. He stated that exceptions to the Look Policy could negatively affect the company’s brand, although the district court found that he had not collected or analyzed data supporting that opinion and had not adequately considered the effect of headscarf exceptions Abercrombie had already granted.
Defense (Abercrombie): Job Duties and Look Policy Expert Witness
Kathleen K. Lundquist provided a declaration and deposition testimony concerning the duties of Abercrombie’s Model position and the role of the Look Policy in the company’s job requirements. She identified brand presentation and compliance with appearance standards as functions of the position, but she had not conducted a study or reviewed a report concerning the effect of Look Policy noncompliance on the brand.
Human Resources Expert Witness
A human resources expert witness may evaluate hiring procedures, interview practices, manager training, workplace appearance policies, and religious accommodation processes under Title VII. In a dispute like this, the analysis may address whether decision-makers followed consistent hiring standards, documented the reasons for changing an applicant’s score, and handled a possible religious conflict through appropriate internal procedures.
Elauf’s Interview Score Documented the Hiring Decision
Heather Cooke initially gave Samantha Elauf a score of six, which qualified her for a hiring recommendation. After consulting district manager Randall Johnson about the hijab, Cooke lowered Elauf’s appearance score and reduced the total to five. That change connected the final hiring result to management’s treatment of the headscarf under Abercrombie’s Look Policy.
The Look Policy Governed Abercrombie’s Treatment of the Hijab
Abercrombie relied on its employee appearance policy when management decided that Elauf’s hijab was not permitted. The written policy expressly prohibited caps, while managers treated the hijab as prohibited headwear. The lawsuit examined how that policy was applied when a religious practice appeared to conflict with a retail appearance standard.
The Courts Disagreed About Elauf’s Failure to Request an Accommodation
Elauf did not tell Cooke that she wore the hijab for religious reasons, and she did not ask for an exception during the interview. The district court concluded that management already had enough information to recognize the possible religious conflict. The Tenth Circuit disagreed and treated direct notice from Elauf as necessary, while the Supreme Court later rejected that requirement.
Abercrombie’s Undue-Hardship Evidence Was Found Insufficient
Abercrombie argued that allowing the hijab could interfere with its brand presentation and in-store image. The district court found that the company had not produced specific evidence showing reduced sales or measurable business harm from headscarf exceptions. The record also included approved exceptions for other employees, which the court considered when reviewing the defense.
The Supreme Court Focused on Why Abercrombie Acted
The Supreme Court separated employer motive from confirmed knowledge. The question was not limited to whether Abercrombie knew with certainty that Elauf would request an accommodation. The Court ruled that she could proceed by showing that management expected an exception would be needed and treated that expectation as a reason not to hire her.
After the Supreme Court rejected the Tenth Circuit’s direct-notice requirement, the case returned to the lower court under a motive-based Title VII standard. Abercrombie then moved to dismiss its remaining appeal, and the Tenth Circuit granted that request on July 27, 2015. The EEOC later reported that Abercrombie paid Elauf $25,670 in damages and separately paid $18,983 in court costs, bringing the litigation to a close.
Why did the district court and the Tenth Circuit reach different conclusions?
The district court found that Abercrombie had enough information to recognize a possible religious conflict, even though Samantha Elauf did not directly request an accommodation. The Tenth Circuit applied a stricter notice standard and concluded that Elauf needed to tell the employer that the hijab was religious and that an exception was required.
What did Abercrombie’s Look Policy prohibit?
The written Look Policy expressly prohibited caps as part of the company’s employee appearance standards. Management treated Elauf’s hijab as prohibited headwear, even though the policy did not specifically mention hijabs.
How did Elauf’s interview score affect the hiring decision?
Elauf initially received a total score of six, which qualified her for a hiring recommendation. After Heather Cooke consulted district manager Randall Johnson about the hijab, Elauf’s appearance score was reduced and her total fell to five, removing her from consideration.
Did the Supreme Court decide whether Abercrombie proved undue hardship?
No. The Supreme Court decided the legal standard for motive and notice under Title VII. It did not issue a final ruling on whether allowing Elauf to wear the hijab would have created undue hardship for Abercrombie.
What happened after the Supreme Court returned the case to the lower courts?
Abercrombie asked the Tenth Circuit to dismiss its remaining appeal, and the court granted that request on July 27, 2015. The EEOC later reported that Abercrombie paid Elauf $25,670 in damages and separately paid $18,983 in court costs.
Employment Discrimination
Equal Employment Opportunity
Labor and Employment
Employment Disputes
Employee Training
Branding
Retail Store Management
Retail Stores
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