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December 9, 2013

Corinne L. Cortes, Esq.

The U.S. District Court for the Ninth Circuit recently held that an Abercrombie & Fitch employee had proven her prima facie case of a Title VII religious accommodation claim against her former employer based on her employer’s objection to her wearing a hijab on the job.  Because the employee and the EEOC established a prima facie case of employment discrimination both under federal Title VII and California FEHA, the burden of proof shifted to the employer.  The Court rejected all three of the employer’s defenses – failure to conciliate, undue hardship, and infringement of commercial free speech.

Defendant Abercrombie & Fitch (“Abercrombie”) operates retail clothing stores across the country. Abercrombie maintains a “Look Policy,” to which all store employees must conform. The policy is designed to communicate “the spirit of each brand.” Plaintiff Khan, a Muslim who believes that Islam dictates her choice of apparel, wore a hijab, a head scarf Islam requires Muslim women to wear in public, during her initial interview. She acknowledged Abercrombie’s Look Policy and agreed to abide by it, but wore the hijab during her period of employment of approximately fourteen (14) months. During that time, Abercrombie failed to inform her of the Look Policy violation, but on a random visit to the store where Khan worked unpacking shipments and stocking the floor, an upper level manager saw her wearing the hijab. Management made two formal requests to Khan to stop wearing the hijab.  Khan responded that she could not remove the hijab because of her religious beliefs. Abercrombie terminated Khan for failure to comply with the Look Policy. Ten (10) days later, Abercrombie offered Khan reinstatement with permission to wear the hijab, which Khan refused.

Khan filed a Charge of Discrimination against Abercrombie with the EEOC. Two similar charges related to hijabs and the Abercrombie Look Policy were pending with the EEOC. In a consolidated conciliation, the EEOC recommended to Abercrombie that all employees should be allowed to wear headscarves in the future without consideration on a case-by-case basis. Abercrombie refused the recommendation, and the EEOC filed the present action.

On cross-motions for partial summary judgment, the Court granted plaintiffs’ motion and denied defendant’s. The EEOC and Khan established a prima facie case of Title VII religious accommodation, successfully showing all three required elements: (1) employee’s bona fide religious belief conflicted with an employment duty; (2) employee informed employer of the belief and conflict; and (3) employer subjected employee to discriminatory treatment because of employee inability to fulfill the job requirement.  Here, plaintiffs proved that Khan held a bona fide belief that Islam required her to wear a hijab in public, that she informed Abercrombie of the belief, and that Abercrombie requested she desist from wearing the hijab at work, and when she didn’t, terminated her for failure to comply with the Look Policy. After plaintiffs’ showing of the prima facie elements, the burden of proof shifted to Abercrombie to prove its affirmative defenses.

The Ninth Circuit held that the EEOC had properly completed conciliation with Abercrombie.  Prior to filing a suit, the EEOC must attempt to eliminate any alleged employment practice by informal methods of conference, conciliation, and persuasion.  EEOC v.Pierce Packing Co. (1982) 669 F.2d 605, 607. The Court disagreed with Abercrombie’s contentions that the EEOC had taken an “all-or- nothing approach” and had “abruptly ended” the conciliation.

The Court further rejected Abercrombie’s defense of undue hardship.  To establish undue hardship requires proof that the requested accommodation would result in “more than a de minimus cost.” Transworld Airlines, Inc. v. Hardison (1977) 432 U.S. 63, 84.  Here, the Court opined that Abercrombie failed to show that any deviation from its Look Policy threatened the company’s success.  The Court also declared without foundation Abercrombie’s claims that an accommodation for Khan would have threatened the core of its business model and overall success.  The evidence provided by Abercrombie was characterized by the Court as nothing more than generalized subjective beliefs and assumptions with no documentation to establish any negative impact on sales or any disruption or imposition.

The Ninth Circuit also rejected Abercrombie’s defense of infringement upon its right to commercial free speech. Commercial speech, entitled to a lesser degree of Constitutional protection, must, as set forth in Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60: (1) be an advertisement; (2) refer to a particular product; and (3) the speaker must have an economic motivation for the speech.  Here, the Ninth Circuit reasoned that Abercrombie’s argument that employees are “living advertisements” did not equate to “representing the brand” because employees were not necessarily wearing the products being sold. Thus, their appearance was considered not to promote a particular product nor propose a commercial transaction.

Finally, the Court held that genuine issues of material fact precluded summary judgment on the EEOC’s claim for a permanent injunction and Abercrombie’s liability for punitive damages.

By: Corinne L. Cortes, Esq.

Cochran, Davis & Associates, P.C.


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