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Monday, October 6, 2014

News Now! | Abercrombie Muslim Case Goes to Supreme Court...


         SIX YEARS AFTER a hiring incident involving the employment denial of a female Muslim for need to wear a hijab on the sales floor, case Equal Employment Opportunity Commission (EEOC) v. Abercrombie & Fitch Stores, Inc. is now heading to the Supreme Court of the United States (SCOTUS). The legal dispute has manifested into a more-than-a-half-decade battle that has now evolved to bring a very important question for businesses and at the highest court in the nation: "Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a 'religious observance and practice' only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee." The outcome will become a major ruling on hiring and employment policies on religious grounds in America.

In June 2008, then-17-year-old Samantha Elauf applied and attended a subsequent interview, wearing a black "headscarf" (hijab), for a position in sales at the abercrombie kids store in her local Woodland Hills Mall in Tulsa, Oklahoma. Present during the interview were then-managers Randall Johnson and Heather Cooke. Following the rigidly strict guidelines for sales associates, the "Look Policy", of the time, Elauf was ultimately denied, although originally having been marked a high contender for a position, because her wearing of a headscarf on the sales floor would be unagreeable with presentation as dictated to represent the brand (i.e. natural, classic look head-to-toe with strict regulations on whatever accessories/miscellaneous wearings). At one moment, Elauf recalled, "And he was like no she can't work here no matter what, wearing that on her head." The two were merely adhering to the Look Policy solely in regards to the headscarf.

Elauf naturally felt discriminated, nonetheless, and she took her complaint to the EEOC which made legal move, on her behalf, by filing lawsuit in September of that year. The complaint went on the grounds that Abercrombie & Fitch Co. prohibits headgear even when required out of personal religion and that there was no exception considered for Elauf. In this first stage, the verdict turned in favor of her in June 2011 when she was awarded US$20,000 in compensation charges though sans punitive damages awardings. During the trial, Deon Riley, VP of human resources for A&F at the time, testified before the court that the Company has made exceptions for individuals when it comes to religious needs, had not changed but made the policy more clear, and that the headcount and turnover are too high for training for expert capability on real sensitive circumstances and is why management is instructed to reach corporate human resources when the need arises. A jury was not needed for the case as it was determined there was no evidence of malice, though the judge did state that a jury with reason could find evidence involving the two managers of reckless disregard.

Abercrombie & Fitch did not agree with the 2011 verdict and appealed. In October 2013, the 10th United States District Court of Appeals overturned the previous verdict and ruled in favor of A&F; its grounds being that, ultimately, Elauf, despite wearing the headscarf during interview and the assistant manager having assumed she wore as being a Muslim, failed to explicitly ask for religious accommodations: "Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie's clothing policy," the ruling stated. Individuals claiming religious discrimination should provide evidence they informed the employer of observed practices and needed accommodation, said the court. The new outcome was told to the U.S. District Court in Tulsa to be submitted in place of the original verdict in the case.

Obviously, the EEOC was not pleased and had no plans on backing down. Finally by May 17, 2014, a time-extension application on filing writ of certiorari was submitted to the Honorable Associate Justice of the U.S. Supreme Court, Sonia Sotomayor. She granted it on May 19 giving them time to June 26, and another application for another extension was submitted on June 16 which she granted on June 17 giving them time to July 25. The petition for writ of certiorari was filed on July 25 and, after going through the necessary processes, was granted on October 2 officially taking the legal dispute to the Supreme Court.

Title VII is a federal legislative piece of the Civil Rights Act of 1964 that makes it illegal to discriminate on someone in the United States under any basis (including religion in relation to this dispute) for employment. Essentially, SCOTUS will be ruling to see if an employer, in a circumstance such as this one, can be said to be violation of Title VII for not hiring or firing someone in a particular matter of "religions observance and practice" ONLY if the employer was aware that religious accommodation was required and that such awareness came from direct, explicit notice from the individual.

If yes, the Supreme Court ruling will be in favor of A&F as Elauf has been determined as not having been direct about a need for religious accommodation. For such a case, if an employer can only be said to be liable under Title VII ONLY if the employer had knowledge of needed religious accommodations by direct, explicit statement by the individual, then there is no ground left for the Elauf complaint.

When applying for a job, you're not asked flat-out if you're a Muslim or a Jew or whatever because it shouldn't matter as it'd be illegal to base consideration of employment of an individual on their religion and belief observances. The question here is should you or should you not be having to explicitly state to the employer that you'll be in need of religious accommodation on the job for being required to wear a "head scarf" (hajib; Muslim), or long skirt (Pentecostal), or Yarmulke (Jew), or whatever else because of your religion. While at work, should you or should you not be able to just wear what you need whenever it arises, due to religion, without giving direct knowledge to the employer your need to and under consideration that there might be a conflict with dress code. If it's an all-the-time thing, to mention it directly during the hiring process. If it's a periodic thing, to mention it during hiring and/or before it comes up. Whatever the situation. Because, if the ruling for EEOC v. Abercrombie & Fitch Stores, Inc. is yes, then you – anyone in America – will have no ground in suing an employer for not hiring or firing you – for wearing something that's out of place with the dress code in light of religious observance – as a result of you not having directly stated your need to do so in the first place because otherwise, had you done so, the employer would have made an exception for you.

We'll keep watch for any new developments on the case...

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