Seeking the Right 'Look' for Employees Proves Costly for Retailer Abercrombie & Fitch
Author: Beth P. Zoller, XpertHR Legal Editor
September 27, 2013
The Equal Employment Opportunity Commission (EEOC) has reached a settlement in two religious discrimination lawsuits over retailer Abercrombie & Fitch's "Look Policy," a dress code that prohibited employees from wearing hijabs or religious headscarves. As part of the settlement, Abercrombie will pay $71,000 plus attorney fees and revise its dress code policy.
In the first lawsuit, Umme-Hani Khan claimed that she was wrongfully let go from her employment with Abercrombie's Hollister store when she requested a religious accommodation to the headscarf policy. In a recent decision, the court found that Abercrombie would not suffer an undue hardship because it was unable to show that its dress code policy was critical to the company's success and that to deviate from it would detract from the in-store experience and negatively impact the brand.
In the second lawsuit, Halla Banafa claimed that Abercrombie refused to hire her because she wore a hijab to her interview and requested a religious accommodation. In an April 2013 decision, Equal Employment Opportunity Commission v. Abercrombie & Fitch, 2013 U.S. Dist. LEXIS 51905 (N.D. Cal. 2013), the court ruled in favor of Banafa and the EEOC. In particular, the court rejected Abercrombie's claim that to provide a religious accommodation would cause an undue hardship because the court found that there was little evidence linking work performance or the company's brand image to compliance with Abercrombie's dress code policy.
As part of the settlement, Abercrombie will pay Banafa $23,000 and Khan $48,000, totaling $71,000 plus attorney fees. Additionally, Abercrombie agreed to:
- Revise its dress code policies to note that Abercrombie is willing to provide religious accommodations to its dress code policy when it comes to hijabs or headscarves;
- Create an appeals process when it denies a religious accommodation request, allowing complaints to be brought to the US Director of HR;
- Inform applicants during interviews that they may seek religious accommodations to Abercrombie's Look Policy;
- Make training on headscarves and religious accommodations a part of all manager training;
- Regularly review religious accommodation decisions to ensure consistency; and
- Provide biannual reports to the EEOC.
This settlement serves as a warning that employers may face significant liability if they deny religious accommodation requests and they are unable to show that they will suffer an undue hardship. It highlights the importance of taking all accommodation requests seriously and engaging in the interactive process and a meaningful dialogue with employees or applicants with respect to requested religious accommodations. In these cases, because Abercrombie was unable to establish a claim of undue hardship, it was compelled to endure years of litigation and incur substantial legal bills that could have been avoided.