Way back on July 29, 2011 we wrote that an Oklahoma jury had awarded $20,000 in damages to a devout Muslim job applicant refused hiring by Abercrombie & Fitch when she appeared for an interview wearing a headscarf, or hijab, which she wore for religious reasons.  Abercrombie & Fitch argued that it has what it calls a “look policy,” which it strictly enforces, which is necessary, it claims, to insure a unified “preppy” brand image.

An EEOC lawyer said at the time that “U.S. District Courts are finding that Abercrombie cannot establish an undue hardship defense to the wearing of hijabs based on its ‘Look Policy.’   This is a clear victory for civil rights.”

Not so fast — an appeals court later reversed this decision!

But wait — the United States Supreme Court has just issued a rare writ and has agreed to hear the EEOC’s appeal, and the betting line is that A&F’s “look policy” may go down.

Why?

First a little background.

Grooming Policies and Title VII

We have written before that although Title VII does not prohibit dress or grooming rules per se, such rules may still violate Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style.   As with most situations involving religious beliefs, an employee must be accommodated as long as this does not cause an undue hardship to the employer.

We cited a few cases to remind us that just because employers have a policy that appears neutral on its face by, for example, prohibiting all employee from wearing or displaying things like tattoos, piercings, long hair, or head scarves, the policy may still run afoul of Title VII’s prohibition against policies which have a “disparate impact” on employees with certain religious beliefs or practices.

Abercrombie & Fitch’s Win On Appeal

Abercrombie & Fitch appealed the Oklahamo case, and in a 76-page decision, the federal court of appeals reversed the summary judgment ruling that preceded the jury trial, so that the jury verdict was vacated, and judgment was entered in favor of Abercrombie & Fitch.

The Court held, in sum, that the employee in that case never informed Abercrombie & Fitch prior to her hiring that she wore a hijab for religious reasons and required an accommodation.

The Court stated that:

“we resolve a question vigorously contested by the parties: specifically, whether, in order to establish a prima facie case under Title VII’s religion-accommodation theory, a plaintiff ordinarily must establish that he or she initially informed the employer that the plaintiff adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice, due to a conflict between the practice and the employer’s neutral work rule. We answer that question in the affirmative.”

Abercrombie & Fitch Loses A Different Case

In a separate case brought by the EEOC, a federal judge ruled against Abercrombie & Fitch on behalf of a Muslim stockroom employee in California who was fired for wearing a headscarf, or “hijab.”

The Court dismissed the company’s defense of “undue hardship” — that “the Look Policy goes to the ‘very heart of [its] business model’ and thus any requested accommodation to deviate from the Look Policy threatens the company’s success,” finding no legitimate evidence of this.   The company then settled this case (and another similar one) for $71,000.

The Supreme Court Has Just Granted Cert To The EEOC

The big news today is that the Supreme Court has just agreed to hear the EEOC’s appeal as to whether Abercrombie & Fitch’s “look policy” as applied to the hijab-wearing Muslim woman violates Title VII.

Even ignoring the merits of the appeal, the fact that the Court has agreed to hear a case in which the immediately lower court ruled against the EEOC gives some of us a clue that a reversal will occur.

But we shall see.