On October 1, 2013, the U.S. Court of Appeals for the Tenth Circuit ruled that Abercrombie & Fitch did not violate anti-discrimination laws when it refused to hire a female Muslim applicant because her religious headscarf violated its "Look Policy" on employee dress. The Court based its decision, which both reversed a lower court's ruling in favor of the Equal Employment Opportunity Commission ("EEOC") on the applicant's behalf and ordered the lower court to issue a decision in the company's favor, on the fact that the applicant did not expressly notify the store that she wore the headscarf ("hijab") for religious reasons and needed an accommodation of its dress policy. Therefore, the Court reasoned, the company did not know of its need to accommodate her religious beliefs and the EEOC could not, as a matter of law, prove its case.
The decision, in this writer's opinion, is a catastrophic failure to apply Title VII law to effect its remedial purpose. The intent of anti-discrimination laws is to prohibit, or prevent as much as possible, discrimination based on certain statuses, one of which is an individual's religious beliefs and practices. In this case, Abercrombie had every reason to know that this applicant wore the headscarf for religious reasons. The decision itself states that the company officials who interviewed the applicant and reviewed her candidacy assumed that she was Muslim and wore the scarf for religious reasons. To allow a company who has that knowledge to nonetheless refuse to hire someone simply because the candidate did not affirmatively announce her need for an accommodation undermines the entire purpose of the statute. It epitomizes form over substance. It encourages companies not to accommodate and to act before a prospective employee has the opportunity to request an accommodation. I hope that the decision gets appealed to the full appeals court en banc and is reversed.