A. Buck, D. Gerrard, T. Nguyen, J. Posselt, K.

Stewart
Professor Finley
Business 201
4 November 2015
Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc
In the case, Equal Employment Opportunity Commission (EEOC) v. Abercrombie &
Fitch Stores, Inc., Samantha Elauf, a practicing Muslim, wore her headscarf to a retail job
interview with Abercrombie & Fitch. She was rejected for the position even though Heather
Cooke, the assistant store manager and interviewer, identified her as qualified for the job. Cooke
sought guidance from both the store and district manager to clarify if the headscarf was in
violation of the companys Look Policy that forbids caps of any type. Cooke informed
Randall Johnson, the district manager, that she believed that Elauf wore the headscarf because of
her faith. Johnson told Cooke that the headscarf was in violation of the Look Policy, religious
or otherwise, and advised Cooke not to hire Elauf.
The EEOC filed a suit on Elaufs behalf claiming Abercrombie violated Title VII of the
Civil Rights Act of 1964, stating an employer cannot refuse to hire an applicant because of the
applicants religious practice when the practice could be accommodated without undue hardship
on the business. The District Court granted summary judgment in favor of EEOC and awarded
$20,000 for damages. On appeal, the Tenth Circuit Court reversed the lower court decision and
awarded Abercrombie summary judgment, stating that the failure-to-accommodate liability
attaches only when the applicant provides knowledge of the need for accommodation.

The Supreme Court ruled in favor of EEOC and Elauf, overturning the Tenth Circuit
Court's summary judgment, noting that the Tenth Circuit Court erred in its interpretation of Title
VII of the Civil Rights Act of 1964.
The Supreme Court disagreed with the Tenth Circuit Courts decision that Abercrombie
was not liable for failure to accommodate without notification of such practices. The Supreme
Court asserted that an applicant only show that a need for accommodation was a motivating
factor in the refusal to hire.
In the Opinion of the Court, Justice Scalia focused on the language of Title VII as the two
main causes for action:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individuals race, color, religion, sex, or national origin;
or
(2) to limit, segregate, or classify his employees or applicants for employment in any way
which would deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individuals race,
color, religion, sex, or national origin. 42 U. S. C. 2000e2(a).

The Court reasoned that Title VII of the Civil Rights Act of 1964 makes it illegal to refuse hiring
an individual because of their religion. The phrase because of only requires an individuals
actual religious practicenot be a motivating factor in the failure to hire an applicant. The
Court reiterated that the word religion is defined to include all aspects of observance and
practice, as well as belief.
The Court also noted that other discrimination Acts, such as the Americans with
Disabilities Act does have a knowledge requirement (i.e., an individual is required to state their
need for accommodation). Title VII does not have a knowledge requirement and interpreting the

statute to include a knowledge requirement would be to add words to the law to produce what is
thought to be a desirable result.
As there is no knowledge requirement, the Supreme Court viewed the interpretation of
Title VII as "straightforward: An employer may not make an applicant's religious practices,
confirmed or otherwise, a factor in employment decisions."
In the concurring opinion, Justice Alito states, It is undisputed that Abercrombie rejected
Elauf because she wore a headscarf, and there is ample evidence in the summary judgment
record to prove that Abercrombie knew that Elauf is a Muslim and that she wore the scarf for a
religious reason. These acknowledged facts along with the clear interpretation from the court
allow any observer to agree that the court reached the proper result. As Justice Scalia said when
announcing the decision, this is really easy.
In reviewing the opinions of the court, Justice Scalia and Justice Thomas provide
opposing, but interesting viewpoints. Aside from Scalias specificity on the case, he addressed an
important issue of separation of powers in the U.S. government. When Abercrombie urged the
Supreme Court to adopt the Tenth Circuit Courts rule of allocating the burden of raising a
religious conflict, Scalia identified the problem with the request as it asked the Supreme Court
to add words to the law to create a favorable outcome. Scalia stated, That is Congresss
province.
Justice Thomass opinion was concurring in part and dissenting in part. Thomas agreed
with the majority opinion that there were only two causes of action under Title VII of the Civil
Rights Act of 1964: a disparate treatment and a disparate impact claim.

His dissent argued that Abercrombies actions fell under the category of a disparate
impact claim, rather than intentional discrimination. Intentional discrimination is defined by the
United States Supreme Court as when an employer has treated a particular person less favorably
because of a protected trait, while in contrast, disparate impact claims involve employment
practices that are neutral in their treatment of different groups but fall more harshly on one group
than another and cannot be justified by business necessity.
Justice Thomas stated that Abercrombie merely enforced a neutral Look Policy, giving
the same treatment to Elauf as any other applicant who could not comply. The act of enforcing a
neutral policy does not constitute intentional discrimination because it followed the definition
of a disparate impact claim: its application was neutral in its treatment of different groups but fell
harshly on one group over another. Thomas asserted that if the majoritys view was accepted
then this would set precedent that would allow employers to be punished even if they were truly
unaware of potential employees need for accommodation.
Thomas was also able to use key elements of law in his writings pertaining to past
precedents. When explaining his opinion that equal treatment is not disparate treatment, Thomas
used a very clear example of a past precedent case in Trans World Airlines, Inc. v Hardison, 432
U.S. 63 (1977) where Trans World Airlines terminated an employee after he failed to show up to
work after asking for Saturdays off due to observance of the Sabbath, even though the company
had a seniority-based scheduling policy. In referencing this case, Thomas was able to highlight
how Trans World Airlines neutral seniority system policy for assigning shifts is the same as
Abercrombies neutral Look Policy in not allowing caps as an allowable garment in the
workplace. Thomas identified that simply refusing to create an exception to a neutral policy for
a religious practice does not constitute treating a particular person less favorable than others but

instead treats the applicant the same as any other applicant who appears unable to comply with
company policy.
EEOC v Abercrombie signals one of the strongest statements from the Court in religious
protections under Title VII. The interpretation of Title VII set forth in the Opinion of the Court
will be an important precedent for future discrimination cases most notably, with the absence
of a knowledge requirement, employers can no longer claim ignorance of lack of knowledge to
an applicant or employees religious requirements.
The Opinion of the Court will require business to evaluate hiring practices, specifically,
where neutral policies such as Abercrombies Look Policy may cause issues by conflicting with
the religious practices of applicants or employees.