Applicant Cannot be Denied Employment Because Head Scarf Worn for Religious Reasons Conflicted with Employer’s Marketing
By Ted Olsen
A retail store denied employment to a well-qualified applicant because she wore a head scarf, and the scarf was deemed inconsistent with the chain's prohibition of employees wearing "caps" and other head gear, as inconsistent with its "Look Policy." The applicant wore the head scarf (which did not cover her face, neck or shoulders) for religious reasons, and had done so devoutly when in public or in the presence of male strangers since age 13 as a reminder of her religion and her faith. She conceded that her Islamic faith did not command her to wear the head scarf. She also conceded that she did not fully satisfy all of the formal requirements of her religion, such as praying five times daily. Nevertheless, insofar as the defendant did not enforce its "Look Policy" consistently and had made accommodations for others, permitting some employees to wear yarmulkes, for instance, the failure to make accommodation for the applicant violated Title VII. EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 09-CV-602-GKF-FHM (N.D. Okla. July 13, 2011).
The defendant's effort to challenge the sincerity of the applicant's religious observances was flatly rejected by the court. Although she may not have observed all the requirements of her faith, and the head scarf may not have been required by the Islamic faith, there was no evidence calling into question the sincerity of the applicant's personal religious belief that she was required to wear a head scarf.
The court also held that the defendant store was given sufficient notice of the applicant's religious basis for wearing the head scarf, as she wore a head scarf to her interview and her interviewer understood she wore the scarf for religious reasons.Most importantly, however, the defendant's argument that making an exception to the employer's "Look Policy" would cause undue hardship was unsuccessful as the defendant had made exceptions to the policy in the past, and the company had not conducted any study proving what adverse effect, if any, an exception would have on the "Look Policy."
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©2011 Sherman & Howard L.L.C. September 1, 2011