Legal Briefing: Suspicion Decision in Abercrombie Case

By Mark Kobata

Aug. 28, 2015

Samantha Elauf, a practicing Muslim, applied for work at retailer Abercrombie & Fitch. Abercrombie interviewed Elauf for a position, and determined that she was qualified to work for Abercrombie. However, Elauf’s interviewer noted that Elauf was wearing a hijab, or headscarf, and suspected that it was worn for religious purposes even though she never stated a need for an accommodation. Abercrombie’s personal appearance guidelines forbid the wearing of “caps,” and Abercrombie’s management concluded that Elauf’s headscarf qualified as a cap and she was rejected.

The U.S. Equal Employment Opportunity Commission filed a lawsuit on Elauf’s behalf claiming religious discrimination and failure to accommodate. The EEOC initially won summary judgment in the trial court, but the 10th Circuit Court of Appeals reversed, entering summary judgment for Abercrombie. The 10th Circuit concluded that an employer had to have actual knowledge of a need to accommodate before Title VII would apply, and Elauf had not put Abercrombie on notice of her need for accommodation. The EEOC appealed the decision to the U.S. Supreme Court.

The Supreme Court reversed the 10th Circuit decision, finding that an employer violated Title VII by making an employment decision motivated by an employee’s religious practice, even where the employer does not have actual notice of the religious nature of the practice. In other words, Abercrombie unlawfully denied Elauf employment based on her religious practice of wearing a headscarf, even if Abercrombie only suspected that Elauf’s wearing a headscarf was a religious practice. EEOC v. Abercrombie & Fitch Stores Inc., 135 S. Ct. 2028; 192 L. Ed. 2d 35 (June 1, 2015).

Impact: An applicant or employee does not have to specify or request a religious accommodation to trigger an employer’s obligations. If an employer even suspects that a practice might be religious in nature, the employer should consider whether the practice can be reasonably accommodated.

Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. To comment, email

Mark Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago.

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