Abercrombie Case Serves as Warning to Employers Who Deny Requests for Religious Accommodations

Author: Beth P. Zoller, XpertHR Legal Editor

September 18, 2013

A recent decision from a federal district court in California provides important lessons for employers when it comes to religious accommodations. Essentially, it requires the employer to present concrete evidence of undue hardship should it refuse to grant a request for a religious accommodation.

In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., +2013 U.S. Dist. LEXIS 125628 (N.D. Cal. September 3, 2013), Umme-Hani Khan, a Muslim employee, worked at Abercrombie & Fitch's Hollister store, primarily in the stockroom unpacking and folding clothing. At her interview, Khan wore a hijab or Muslim headscarf.

At the time Khan commenced employment, Abercrombie maintained a "Look Policy" prohibiting employees from wearing any headwear, in addition to other restrictions on employee dress and grooming. Despite the fact that Khan acknowledged the Look Policy and agreed to abide by it, Khan's local supervisors permitted her to wear the religious headscarf to work and never informed her she was violating the Look Policy. Several months later, a District Manager visited the store presumably noting Khan's headscarf. Soon after, Khan was notified that this violated the Look Policy and was asked to remove it.

Khan refused based on her religious beliefs and was ultimately suspended and then terminated. She then filed a religious discrimination charge with the Equal Employment Opportunity Commission (EEOC) and the EEOC brought a suit claiming religious discrimination and a failure to accommodate.

The California district court determined that Khan established a religious discrimination claim under state and federal law since Abercrombie had wrongfully terminated her for wearing a headscarf in accordance with her religious beliefs. The court explicitly rejected Abercrombie's argument that granting Khan a reasonable accommodation and permitting her to wear the headscarf would cause them an undue hardship. The court found that Abercrombie failed to present credible evidence that that the Look Policy was critical to Abercrombie's success and that to deviate from it would detract from the in-store experience and negatively impact the brand. Additionally, Abercrombie failed to show that Khan's wearing the headscarf for four months had any detrimental effects in terms of a decrease in store sales, "customer complaints or confusion, or brand damage," and Abercrombie failed to show that allowing her to wear the headscarf would threaten Abercrombie's business model or the company's overall success in any way.

The court additionally noted that Abercrombie had granted other religious accommodations including permitting employees to grow facial hair or wear yarmulkes, visible jewelry or long skirts and even headscarves in accordance with their religious beliefs. While Abercrombie attempted to prove undue hardship by asserting that low sales were due to noncompliance with the Look Policy and that training on the Look Policy led to an increase in sales, the court found Abercrombie's reliance on the "unsubstantiated opinion testimony" and "personal beliefs" of Abercrombie employees in support of its claim for undue hardship to be "speculative and purely subjective in nature."

In light of this decision, employers should be particularly cautious and evaluate all religious accommodation requests on a case-by- case basis, engaging in the interactive process with the employee. The interactive process involves an ongoing open-ended dialogue between the employer and the employee to determine if a reasonable accommodation exists which would allow the employee to continue doing his or her job while complying with his or her religious beliefs. If an employer chooses to deny a request for a religious accommodation, the employer should make sure that they can establish undue hardship and the requested accommodation would pose a more than de minimis cost or burden. For example, an employer may prove undue hardship by showing that the requested accommodation will decreases job efficiency or employee productivity, wrongfully infringe on the job rights or benefits of other employees, threatens workplace safety or conflicts with another law or regulation.