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Supreme Court Rules Abercrombie Guilty of Discrimination in Hijab Case

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Abercrombie and Fitch hasn’t been faring quite well in the battle for teen retail market share and things aren’t going the company’s way in the legal department either.

The United States Supreme Court ruled against Abercrombie Monday in a discrimination case in which a Muslim woman said the retailer denied her employment back in 2008 because she wore a headscarf—attire in conflict with the company’s Look Policy.

Abercrombie’s Look Policy governs employees’ dress in order to main the image the company seeks to project, and the policy prohibits “caps” for being too informal, though the term is not specified further, according to the Supreme Court case document.

Samantha Elauf applied for a position at a Tulsa, Oklahoma store, and after deeming the candidate qualified for hire, the assistant manager who interviewed her inquired as to whether Elauf’s headscarf would conflict with the Look Policy. The store’s district manager later said it would, as would all other headwear, and told the assistant manager not to hire Elauf.

The Equal Employment Opportunity Commission (EEOC) sued the store on Elauf’s behalf in 2009, claiming Title VII violation. The jury sided with Elauf, who was awarded $20,000 in damages.

Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship.

The Tenth Circuit Court of Appeals, however, overturned the verdict, arguing that the prohibition didn’t apply, as the retailer wasn’t informed of any need for accommodation.

Abercrombie tried to argue that Elauf couldn’t show disparate treatment without showing that the retailer had “actual knowledge” of her need for accommodation in wearing the headscarf.

But the Supreme Court disagreed with Abercrombie in an 8-1 ruling.

“An applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision,” Justice Antonin Scalia wrote in his delivery of the Court’s opinion.

The Court ruled that the intentional discrimination provision prohibits certain motives regardless of the state of the actor’s knowledge. “Motive and knowledge are separate concepts,” Scalia wrote.

An employer with actual knowledge of the need for accommodation doesn’t violate Title VII by refusing to hire an applicant if avoiding that accommodation wasn’t his motive, Scalia noted. Conversely, he continued, an employer who acts with the motive of avoiding accommodation may violate Title VII even with no more than an “unsubstantiated suspicion” that accommodation would be needed.

“An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” according to Scalia.

Abercrombie said in a statement Monday that it “remains focused on ensuring the company has an open-minded and tolerant workplace environment for all current and future store associates.” It also said it has made significant changes to its store policies, including replacing the Look Policy with a dress code that allows for individualism and that its hiring practices have been changed “to not consider attractiveness.”

The Supreme Court ruling found that the Tenth Circuit misinterpreted Title VII’s requirements and remanded the case back to the lower court for consideration in keeping with Monday’s decision.

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