Dec 12, 2014

Abercrombie & Fitch company policies that banned religious headgear violated the Civil Rights Act of 1964, Americans United for Separation of Church and State says in a brief filed before the U.S. Supreme Court.Americans United joined a friend-of-the-court brief filed by the American Jewish Committee in the matter of EEOC v. Abercrombie & Fitch. The case will be heard by the Supreme Court this term.

The suit stems from a complaint filed by Samantha Elauf, who is Muslim. Elauf alleges that she was rejected for a job with the company because she wore a headscarf for religious purposes. The manager responsible cited Abercrombie’s “Look Policy,” which banned hats, including religious head coverings, for all employees.After being informed the company would not make an accommodation for her beliefs, Elauf filed a complaint with the Equal Employment Opportunity Commission, arguing that the policy amounted to religion-based employment discrimination.In response, Abercrombie asserted that it was not required to accommodate Elauf’s religious beliefs –even though it knew about them – because Elauf had not specifically requested a religious accommodation during her job interview. The U.S. Court of Appeals for the 10th Circuit accepted this argument and ruled against Elauf.The brief rejects that argument, saying that employers cannot remain willfully ignorant about a job candidate’s entitlement to a reasonable accommodation. The brief explains that a ruling for Abercrombie would provide “a simple roadmap for any employer who wants to engage in intentional hiring discrimination based on religion: Don’t ask, don’t tell.”

Abercrombie has since changed its policies but continues to argue that it acted legally by refusing to grant Elauf a religious accommodation.“The Civil Rights Act requires employers to accommodate employee’s religious practices when doing so would not burden the employer,” said AU Senior Litigation Counsel Gregory M. Lipper. “Although an accommodation is not required in every case, Abercrombie’s argument would allow employers to bypass the requirement entirely. This result would leave religious minorities especially vulnerable to discrimination based on unfair stereotypes – exactly what the Civil Rights Act was supposed to prevent.”

The brief was written by David T. Goldberg of Donahue & Goldberg; Toby J. Heytens, Daniel R. Ortiz, and Douglas Laycock of the University of Virginia; and Marc Stern of the American Jewish Committee. Americans United joins the brief alongside the Anti-Defamation League, the Jewish Council for Public Affairs, the Jewish Social Policy Action Network, the National Center for Lesbian Rights and the Union for Reform Judaism.